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THE 



PRACTICAL DEVELOPMENT 



OF 



DELEGATION AND REPRESENTATION 



United States of America. 



A DISSERTATION FOR THE DEGREE OF DOCTOR OF PHILOSOPHY AT THE 
UNIVERSITY OF LEIPZIG. 



HENRY B. MOLYNEAUX. 



JK 

lOTl 



NEW YORK: 
NEW YORK ECONOMICAL PRINTING COMPANY, 194 FULTON STREET. 

1 8 80. 



fl 




Book 'M7Z 



SMUHSONIAKPEPOSIT 



THE 



PRACTICAL DEVELOPMENT 



OF 



DELEGATION AID REPRESENTATION 



IN THE 



United States of America. 



A DISSERTATION FOR THE DEGREE OF DOCTOR OF PHILOSOPHY AT THE 
UNIVERSITY OF LEIPZIG. 



V 

HENRY B. MOLYNEAUX. 



>\ 



'^ -., V 






NEW YORK: ^^^ 
NEW YORK ECONOMICAL PRINTING COMPANY, 194 FULTON STREET. 

1 880. 






To my Brother, Wilbur L. Molyneaux, 
of New York, this Dissertation is affectio?i- 
ately dedicated by 

The Author. 
I 

Leipzig, in March, 1880. 



INTRODUCTION. 



First. I propose to write a sketch of the development of 
the idea of representative self government in the United States 
of North America prior to, and including, the period of the 
Revolution. 

Second. The further development and permanent embodi- 
ment of the same idea in the Constitution ; and. 

Third. Its practical operation under that instrument. 

It is not proposed, in giving this sketch, to give an account 
of each State or Colony in detail, for to do that would be to 
make a history of them, but only to seize upon such facts as 
seem to the essayist worthy of note in tracing out the growth 
of this not Entirely new, but rather renewed^ idea ; and when I 
say renewed, I use that word in a double sense — viz., reinstated 
and reorganized — a reinstatement of old Germanic ideas, but a 
complete reorganization and rehabilitation of them, in accord- 
ance with the novel circumstances presented in a new and 
undeveloped country. Here the old wine was not content to 
remain unaffected in old bottles ; it could not if it would. 
The conditions were such that the old forms and restrictions, 
tested and found worthy in Europe, were found wanting ; and 
the old as well as the new wine of the human spirit was held 
in check by new forms and new methods of government. 



I5I2-I7S4- 



COLONIZATION AND CHARTERS. 

The organization of the people of North America into colonies 
was undertaken under various European governments, granting 
special rights and privileges, under various forms, at different 
times, entitled charters^ patents and grants. As early as 15 12, 
adventurers from Spain had entered the Carolinas, but disap- 
peared almost as soon as they came,' and it was left to the 
English^ to establish the first real colony in Virginia, in 1607, 
having received a charter the year previous.^ It may as well 
be said here that the Spanish expeditions were all mere renown 
seeking events.* Not long after the Cavaliers had formed their 
settlement, at Jamestown, in Virginia (1606),^ the Puritans left 
Holland, and arrived on the coast of New England November 
loth, 1620. They had no charter, but had received a patent,^ 
under the King James charter,'' from one of the two companies 
in whose favor it had been granted.^ Before leaving Holland 
they had considered how they were to govern themselves in the 
unknown wilderness to which they were about sailing ; and when 
they were in sight of land,^ they drew up and signed a plan of 
government, which was to be their rule of action when they 
landed.'" In this covenant they agreed to form a " civil body 
politic," for the enactment of " such just and equal laws, etc.," as 



^Excepting the unimportant colony of San Augustine (Sept., 1564). 

-The earliest of these patents was granted to one Gilbert by Queen Eliza- 
beth, June II, 1578; also Raleigh (1584). 

^From King James I.; after Raleigh's imprisonment. 

4Hildreth's Hist. U. S., vol. i., i. 

5 Bancroft's Hist. U. S., vol. i., 89. 

niildreth's Hist. U. S., vol. i., 157. 

'Hildreth's Hist. U. S., vol. i., 94. 

^Bancroft's Hist. U. S., vol. i., 205. 

^On board the " Mayflower ;" also Bluntschli ; Lehre vom Modernen Stat, 
Band i., 539. 

^"Plymouth Colony Laws. 



6 COLONIZATION AND CHARTERS. 

should be deemed necessary for "the general good." It was not 
long, however, before they received a charter, viz., in 1629,^ by 
which their affairs were to be managed by a governor, deputy 
governor, and eighteen assistants, who held monthly assemblies 
for ordinary business, and quarterly assemblies for making laws, 
and attending to the more important business of the colony. 
Once in each year there was a general election of the above 
mentioned and other officers, by the freemen or stockholders of 
the company. Two motives were prominent in this settlement 
of New England — the one commercial, the other religious. The 
Pilgrims sought in vain to get a guarantee of religious freedom, 
and this is perhaps what Bancroft means when he says they could 
not obtain a charter.^ 

The colony of Virginia was regulated by a permanent " Coun- 
cil of Virginia," resident in England, whose members were ap- 
pointed by the king f but in the colony there was a council of 
seven members, who were presided over by a president, who was 
of their own number.^ He was chosen annually by the colonial 
council, but the council in England could remove him, or any of 
the local councilors, at pleasure. The form of government might 
be said to have been /oca/ se/f, subject to the disapproval of the 
king or council in England. In 16x9 deputies were chosen from 
the various plantations, so that at this early date we have the 
frame of the English government transferred to America, for now 
they had a governor, council, and body of deputies called house 
of burgesses, corresponding to king, lords and commons.- 

Charters were now granted in succession to Maryland, 1632; 
Maine, 1639; Connecticut, 1662; and Rhode Island and Caro- 
lina in 1663.^ New York had been settled as early as 16 13® by 
the Dutch, and New Jersey a few years later by the same (1623).' 
The government of the Netherlands had given certain rights of 

^Hildi-eth's Hist. U. S., vol. i., 179, 180, who says: " The company easily 
obtained a royal charter," etc.; while Bancroft's Hist. U. S., vol. i., 242, says : 
" But it was ever impossible to obtain a charter from the king." 

-Before the granting of their charter they had allowed all the colonists to 
take part in the government, but after that eveiything was regulated by the 
officers of the company, in England. 

^Bancroft's Hist. U. S., vol. i., 92. 

^Hildreth's Hist. U. S., vol. i., 95, 96. 

^Kent's Commentaries, vol. ii., 2-4 ; also, American Archives, 4th series, 
vol. i., 65-104. 

«Hildreth's Hist. U. S., vol. i., 136. 

'Hildreth's Hist. U. S., vol i., 140. 



I 



COLONIZATION AND CHARTERS. 7 

possession to a corporation called Proprietors/ but in 1664 they 
both became English. In the former a general meeting of all the 
towns was held March ist, 1665 (by deputies). A code of laws 
was proclaimed, which had been collated from existing laws in 
Virginia and Massachusetts. Here each town was allowed four 
overseers, who held office two years, one half going out of office 
yearly.^ In the latter (New Jersey) certain " concessions " were 
made in 1664. The proprietaries were to nominate a governor and 
council, the latter not to exceed twelve ; and to these was added 
a company of delegates chosen by the freeholders, also twelve in 
number; the two latter forming an assembly for legislative pur- 
poses.^ Delaware was settled in 1638 by Swedes, in furtherance 
of the designs of Gustavus Adolphus, who had, just before his 
last battle (Liitzen), recommended Germany to adopt and parti- 
cipate in his scheme, which was done by the " deputies of the 
four upper circles" of Germany, at Frankfort, December 12th, 
1634.^ Pennsylvania, settled by William Penn, under a patent- 
grant, in 1 68 1, was to be taxed only by its own assembly, which 
was to legislate for her; but the king reserved the right of veto.^ 
Penn assumed the proprietary government in a proclamation, 
dated London, April 8th, i68t, in which he said: "My friends, 
you shall be governed by laws of your own making^'' etc. In the 
following year he gave the colony a liberal form of government, 
in which he proposed to reserve to himself and his successors 
"no power. of doing mischief." His idea of freedom is summed 
up in these words : "Any government is free where the laws rule, 
and where the people are a party to those laws."*' Georgia re- 
ceived her charter in 1732, by which certain powers were vested 
in a number of trustees (twenty-one), who had power to increase 
their own number as they pleased, and had the right of legislation 
for twenty-one years; but their acts were subject to the approval 
of the king. They nominated officers to fill vacancies, and also 
nineteen of the thirty-four common councilors who administered 
the affairs.'' These charters, as we have briefly seen, were of a 

^Ruttimann, Nordamerikanische Bundes Recht, vol. i., 6. 
^Hildreth's Hist. U. S., vol. ii., 45. 
^Hildretli's Hist. U. S., vol. ii., 51, 52. 

^Bancroft's Hist. U. S., vol. ii., 561. Delaware became English, 1664. 
^Bancroft's Hist. U. S., vol. ii., 618. 
« Bancroft's Hist. U. S., vol. ii., 618-620. 

'''Bancroft's Hist. U. S., vol. ii., 1002; also, Hiklreth's Hist. U. S., vol. 
ii-, 363- 



8 DECLARATIONS OF RIGHTS. 

varied character, owing to their having been granted at different 
times, by different rulers and corporations of different countries, 
as well as to the character and manners of the people who, under 
their provisions, took possession of the land. All of the earlier 
English charters granted the same rights, or, at least, implied 
them, to the settlers as were enjoyed by their countrymen at 
home. According to the Massachusetts charter of 1629,^ the 
proprietors could make all laws not in conflict with those of 
England.^ Maryland, settled by Lord Baltimore, had an exceed- 
ingly liberal charter given her. She was granted the independent 
right to legislate, and no tax was to be levied without her con- 
sent.^ The charter given to William Penn contained the first idea 
of the right of the English Parliament to tax the American colo- 
nies. It read : " No tax shall be levied without the consent of 
the proprietors or general assembly, or by the act of parliament.'"* 
This, however, was interpreted by the people to mean in case they 
sent delegates to parliament, and Benjamin Franklin said as 
much to the House of Commons nearly a century later. By the 
new charters given to Plymouth and Massachusetts Bay colonies, 
in 1692, they were given the right to choose the twenty-eight 
councilors of the governor every year, as well as to elect their 
own representatives. It was the repeal of this charter, in 1774, 
which added to the grievances of that time.^ The charter of New 
York (1691) gave the right of trial by a jury of twelve men, who 
were the equals in rank of the accused ; nor were taxes to be 
levied without the consent of the assembly which was to meet 
each year. From this outline of the various charters, it will be 
seen that all the early ones were liberal in their spirit, and served 
largely to give the people a basis for those broader notions of 
liberty which were subsequently cultivated. In order to fully 
appreciate this spirit, we must have recourse to their so-called 

DECLARATIONS OF RIGHTS. 

It is not enough that a people should have certain documentary 
rights in order to be free. They must be ever on the alert, not 

iHildreth's Hist. U. S., vol. i., 180. 

^"Claims of the Colonies to Exemption," etc., p 6. 

^The Justice and Necessity of Taxing the American Colonies Demon- 
strated, p. II. 

*" Justice and Necessity," etc., p. 11 ; also. The Claim of the Colonies to 
Exemption from Taxation, p. 5. 

''American Aixhives, vol. i., 104. 



DECLARATIONS OF RIGHTS. g 

only to assert, but to defend those rights against unjust interpre- 
tation and presumptuous encroachment. 

No people in the world's history seem to have had a clearer 
view on this point than the early colonists in America. They 
recognized the necessity of making express declarations of their 
chartered rights, and hence we have an example of this in the 
action of the Jirs^ popular legislative assembly held in America, 
viz., that of Virginia in 1624.^ It appears that King James had 
attempted to control the election of treasurer of the Virginia 
company, but the company had resisted his effort successfully. 
In the same year (162 1) a written constitution was established, 
similar to the English constitution, according to which a gover- 
nor and permanent council were to be appointed by the com- 
pany ; and an assembly chosen throughout the colony, to meet 
yearly, upon whose acts the governor had a veto. Under this 
mild constitution the people were prosperous and happy; and 
when, at another election of officers, in 1622, King James again 
attempted to control the choice and failed, he resolved to annul 
the patent. It was against this exercise of the royal power that 
the Virginians met, in 1624, to declare their general rights as 
men, and still further to affirm that the governor should not levy 
taxes without their assent. 

In 1638^ the first general assembly of Maryland met, and de- 
clared that the Magna Charta of England was to be their guide. 
Other colonies did the same — Massachusetts in 1628; Plymouth, 
1635, 1658 and 167 1 ; the proprietaries of East New Jersey, 1664,^ 
and by the general assembly of the same in 1682 and 1698; by 
West New Jersey in 1676; by Carolina in 1667, and by New 
York in 1683'' and 1691. At the first general assembly of New 
York in 1683,^ the right of every freeman and freeholder to vote 
for members of the assembly was affirmed, together with some 
other rights which were granted by the provincial governor. 
This document was called " The Charter of Liberties and Privi- 
leges, granted by his Royal Highness (Duke of York) to the 
inhabitants of New York." 



1 Bancroft's Hist. U. S., vol. i., p. 143. 
^Bancroft's Hist. U. S., vol. i., 189, 190. 
'^Hildreth's Hist. U. S., vol. ii., 51. 
^Hildreth's Hist. U. S., vol. ii., 76. 
•'^Hildreth's Hist. U. S., vol. ii., 76. 



,o REPRESENTATION (Particular). 

In 1665 civil and religious rights were demanded and ob- 
tained from the proprietaries in New Jersey.^ In all the colo- 
nies settled by the English we see the same popular feeling 
prevailing, and in those colonies which were settled by other 
Europeans, as soon as they became English, the same spirit is 
noticeable. 

It may be stated here, however, that although there was a 
great difference between the Cavalier who settled in Virginia, 
and the Puritan who settled in New England, yet at that early 
period there was not the class distinction in the Southern colo- 
nies which sprang up during the growth -of the institution of 
slavery. There was, indeed, an aristocracy, but not a dangerous 
class aristocracy. They and their descendants were a class of 
men of whom any nation might well be proud, and they cast no 
mean light upon the democracy of a later period in their efforts 
towards 

REPRESENTATION (Particular). 

The first indication of this idea is observable in the coming 
together of the heads of families, in Massachusetts, once each 
month, to consider what was best for their general welfare. This 
was a patriarchial form of government assumed by the people up 
to 1629, after which, for a time, it was purely democratic. From 
1629 to 1634 Massachusetts had a legislature composed of a 
governor, his councilors and all the fi-eeinen in person. As these 
freemen became too numerous to meet in a body, the various 
towns were directed to assemble, by deputies., in the assembly, 
which was called the General Court, and which was convened for 
the first time in 1634. The first representative body, however, 
elected directly by the people was that of Virginia, which met in 
1624. In Maryland, the first assembly (1635) was composed of 
freemen, and in 1639 a general court was established by the same 
authority. In the colony of Plymouth the people legislated en 
masse until 1638, when it was declared to be grievous for all to 
come together. In Pennsylvania, the various proprietors elected 
all their ofiicers except the governor. In Rhode Island, the patri- 
archal form of government prevailed at first, then gradually the 
different localities chose assemblymen, and they, jointly with the 
governor and council, made the laws. In those colonies, founded 

^Hildreth's Hist. U. S., vol. ii., 52. 



VOTING. II 

upon more aristocratic principles, the right to be a representative 
was limited to a few (freeholders). Gradually the governors and 
their assemblies became jealous of, and antagonistic to, each 
other, so that two houses were formed. This took place in 
Massachusetts in 1644, after an unjust decision had been ren- 
dered in a civil action by the so-called general court. ^ The next 
question of importance appears to have been as to how the 
deputies were to be elected, and by whom. 

VOTING. 

In New York and in Massachusetts the people voted at first 
viva voce. The first mention made of their voting by ballot is in 
the law passed by the General Court of Massachusetts, in 1636, 
which stated that the freemen might choose their deputies by 
papei's^ In Plymouth colony, in 167 1, if any freeman did not 
appear at the place of election, either in person or by proxy, he 
suffered a heavy penalty. 

In 1639 the free planters of Connecticut^ provided that their 
officers should be elected by ballot. Not many years afterwards, 
when these New England colonies had begun to be self-sustain- 
ing, the threatening attitude of the hostile Indian tribes, and the 
encroachments of the Dutch settlers from New York, led to the 
adoption of measures of a more extended character, as a result of 
which we have the first eff'orts towards union or 

REPRESENTATION (General). 

This was in 1643, when the colonies of Massachusetts, Ply- 
mouth'' and New Haven formed a league against their above- 
mentioned enemies, which was known as the United Colonies of 
New England.^ 

These colonies held a congress, which was composed of dele- 
gates called commissioners — two being sent from each colony.^ 

To this congress was given power to decide all matters of 
war, peace and general interest ; and a decision made by a 

iHildreth's Hist. U. S., vol. i., 297-299. Bancroft's Hist. U. S., vol. i., 
325, 326. 

^Winthrop's Hist, of New England, vol. i., 128, 
^Bancroft's Hist. U. S., vol. i., 301, 302. 
"^Plymouth Colony Laws, ed. 1836. 
'''Bancroft's Hist. U. S., vol. i., 315-317. 
<5Compare Hildreth's Hist. U. S., vol. i., 285, 286. 



12 REPRESENTATION (General). 

majority of these commissioners was binding upon all. Accord- 
ing to their Articles of Confederation, each colony had exclusive 
jurisdiction within its own territory ; and, in case of war, each of 
the confederates had to furnish her quota of armed men and war 
munition in ratio of the population ; nor could two colonies join 
in doing anything without the consent of all the colonies ; and 
unanimous consent was required to admit a new colony into the 
confederation. Moreover, if any colony violated any of the Ar- 
ticles of Agreement, or injured the interests of another colony, or 
refused to obey the mandates of the commissioners, then the 
remaining commissioners had power to examine and settle the 
matter as they thought best. This may be said to have been the 
first of a series of efforts which were continued for nearly a cen- 
tury and a half by the colonists to form a representative govern- 
ment. In this manner there sprang up, under the original charters 
granted by the English Government, governmental action inde- 
pendent of the authorities in England, which was, no doubt, 
largely owing to the great civil war at that time convulsing the 
mother country, and to the subsequent protectorate of Oliver 
Cromwell. Nor did Great Britain give her colonies much atten- 
tion until sometime after Cromwell's death; no, not until 1686, 
when some of the original charters were annulled by King James 
II., who, like the Bourbons, was incapable of learning by experi- 
ence.^ Under William and Mary, however, the old charters were, 
in substance, renewed, except that the governors were appointed 
by the Crown, and had greater powers than formerly. As the 
people became more prosperous and wealthy, the colonies began 
to tempt the cupidity of the English courtiers, who looked upon 
them as legitimate commercial prey. Grants of land of many 
thousands of acres were given to noble adventurers and soldiers 
of fortune, while the English merchant believed himself then, as 
now, to have a divine right to sell his wares, even to the extent of 
thrusting them upon the people by force. 

From this time on until the symptoms of the French and 
Indian war were beginning to be felt, numerous congresses of 
governors and commissioners were held, chiefly at Albany, to con- 
cert measures for the protection of the frontier against Indians.*^ 

Of these many congresses, the most important in its bearing 
upon the future, was that held at Albany in 1754. 

^Hutchinson's Hist. Massachusetts, vol. i., 126. 
-Schmidt's Hist. Yew York, vol. i., 171. 



1754-1783- 



This congress is the more remarkable because it gives the 
first indication of a desire on the part of, at least, the more en- 
lightened and far-seeing men of that time to form a closer union 
between the colonies. It had been called together at the instance 
of the Lords Commissioners for Trade, in England, to consider 
ways and means for defense in the then impending French and 
Indian war. The representatives of the colonies, however — 
comprising some of the men who afterwards became famous in 
the War for Independence — were not content merely to attend 
solely to these war matters. They had broader views; nobler and 
higher aims. They, no doubt, foresaw the inevitable conflict 
which must sooner or later come.^ There were present delegates 
from the colonies of New Hampshire, Massachusetts, Rhode 
Island, Connecticut, New York, Pennsylvania and Maryland. 
Massachusetts had instructed her delegates not only to assist in 
perfecting measures for the common defense, but to conclude 
articles of union and confederation with the other colonies for 
their security in peace as well as in war ; and this convention 
unanimously resolved that a union of all the colonies was abso- 
lutely necessary for their preservation. The Lords Commis- 
sioners endeavored to divide the colonies among themselves, by 
proposing measures that were disagreeable to some of the colo- 
nies and favored by others, but all of these proposals were re- 
jected. 

As to what these delegates, or, at least, a part of them, had in 
view, may be judged from one of the resolutions brought in^ — 
" that there should be a council of delegates chosen every three 
years, to be presided over by a president^ to be selected by the 
Crown. This council was to have the right of making war or 

^As early as 1752, an anonymous writei", said to have been Franklin, de- 
clared from Philadelphia, that " a voluntaiy union, entered into by the colonies 
themselves, would be preferable to one imposed by Parliament." — Bancroft's 
Hist. American Revolution, vol. i., 103. 

^By Benjamin Franklin. The idea did not originate with Franklin, but 
was suggested by William Penn as long ago as 1697. 



14 1754-1783. 

peace with the Indians, subject to the veto of the president, and, 
eventually, to that of the Crown. They were to have authority 
to make laws for the government of new settlements that might 
spring up in the wilderness ; to raise and equip troops, and arm 
vessels of war ; to levy duties and raise taxes for the support of 
the government. But the people were not quite prepared for 
such innovations, and so this well arranged, and, for them, com- 
prehensive scheme of government was rejected,^ perhaps chiefly 
because of a jealousy of the veto power, and also because of a 
disinclination to hurt the sensibilities of the mother country. 
Dr. Benjamin Franklin said, six years after this convention met, 
that it was impossible to unite the colonies against the mother 
country.^ 

The chief aim of some of the colonies was to establish a par- 
liament which should be independent of the English Parliament, 
in which they had no voice. After the close of the French and 
Indian war,^ the British House of Commons, urged on by the 
inordinate greed of their merchants and traders, as well as the 
obstinacy of the king, passed a series of acts^ which served to 
arouse the people as one man, and to array them in violent 
opposition to their enforcement. 

The first of these acts was that passed in the House of Com- 
mons on April 2d, 1764 ; by the Lords on the 4th, and signed by 
the king on the 5th of the same month.^ It was an " act for 
granting certain duties in the British colonies and plantations in 
America," etc., etc. The effect of this act upon .the people in 
America may be judged from the reports of the proceedings in the 
Massachusetts House of Representatives," which asserted, in their 
plainest terms, its sole right to regulate the taxation laws. In a 
letter sent by them to the British agent, Mr. Manduit, the fol- 
lowing sentiments occur : " The silence of the province should 
have been imputed to any cause, even to despair, rather than be 
construed into a tacit cession of their rights, or an acknowledg- 
ment of a right in the Parliament of Great Britain to impose 
duties and taxes upon a people who are not represented in the 
House of Commons."® 

^By the Colonial Assemblies, who were to ratify it. 

^Franklin's Works, vol. iii., 22. 

3In 1763. 

* American Archives, 4th series, vol. i., 12. 

5 1st, 13th June, 1764, 

^American Archives, vol. i., 13. 



1754-1783- 15 

In a report made by a committee of lords, April 20th, 1774, 
the same House of Representatives was accused of avowing cer- 
tain opinions, contained in a treatise, by James Otis,' as follows : 
"That the imposition of taxes, whether on trade or on land, on 
houses or ships, on real or personal, fixed or floating property, in 
the colonies, is absolutely irreconcilable with the rights of the 
colonists, as British subjects, and as men." 

On the 28th of February, 1765, an act was passed by the 
House of Commons, entitled, " an act for granting and applying 
stamp duties and other duties in the British colonies in America," 
etc., etc. These acts led to the calling together of the House of 
Representatives of Massachusetts, on the 6th of June, 1665, which 
resolved : " That it was highly expedient that there should be 
a meeting of committees from the Houses of Representatives, or 
Burgesses, in the several colonies on the American continent, to 
consult on their present circumstances, and the difficulties to 
which they were reduced by the operation of the late acts of par- 
liament, for levying duties on the colonies, and to consider of a 
general address to his majesty and parliament, to implore relief; 
and that letters should be forthwith prepared, and transmitted to 
the respective speakers of the several assemblies, to invite them 
to accede to this proposition."^ 

The appeal, which was made to England, in accordance with 
the above^ resolution, met with no response, and on August 15 th 
following, a violent disturbance took place in Boston, where the 
distributers of the detested stamps had their houses pulled down 
about their heads. ^ On the 25th of October, 1765, the council 
and House of Representatives of Massachusetts resolved, on joint 
ballot, that it was lawful to do business without the use of stamps, 
parliamentary action to the contrary notwithstanding. The in- 
vitations sent out to the various colonies were answered by their 
delegates coming together in convention,'^ at New York, October 
7th, 1765.^ This congress agreed upon a bill of rights, in sub- 
stance the same as expressed by the earlier colonial assemblies. 
It also refused to acknowledge the stamp act. 

^ James Otis' article on " Right of the Colonies," in a book called " Obser- 
vations on the Stamp Act," i765-'66. 

^American Archives, vol. i., 13, 14. 

^American Archives, vol. i., 14. 

*Only nine colonies were represented. Compare Stedman's Geschichte des 
Amerikanischen Kriegs, Band i., 51-53. 

^Journal Continental Congress of 1765, New York, 1840. 



i6 1754-1783- 

By reason of these resolutions, the British Parliament resolved, 
on the loth of February, 1766,^ that it "had, and of right ought 
to have, full power and authority to make laws and statutes of 
sufficient force and validity to bind the colonies and people of 
America, subjects of the Crown of Great Britain, in all cases what- 
soever ^ Parliamentary acts of unusual severity were now passed 
in rapid succession ; among others, the so-called orders in coun- 
cil, which repealed or made null and void the acts of the colonial 
assemblies. The iniquitous stamp act, however, was repealed by 
parliament, March [8th, 1766.^ On the 29th of June, 1767, com- 
missioners were appointed to see to the .execution of the laws 
relating to trade in America;^ and on the 9th of May, 1768, in 
furtherance of this law, the sloop Liberty was seized by the cus- 
toms officers in Boston Harbor,* which occasioned severe treat- 
ment to some of them, and the appearance of troops on the spot 
only served to irritate the people still more. 

The assemblies had been commanded to rescind their former 
resolutions sending circular letters to the various assemblies, but 
this they refused to do, upon which in Massachusetts the assembly 
was dissolved by the governor, and as he would not call them 
together they called town meetings ; and that held in Boston 
September 12th, 1768,^ voted to choose a committee to act for 
them in convention with those sent from the other towns in the 
province. They also reminded the people of their old provincial 
law, viz., that each man should be provided with a musket and 
the necessary appurtenances thereto. Events grew daily more 
exciting ; vessels with cargoes were returned to England, they not 
being allowed to discharge ; and when the English merchants com- 
plained that they were being ruined the Bostonians replied " that 
if a ship was to bring in the plague nobody would doubt what was 
necessary to be done with her, but the present case is much worse 
than that."^ During the years 1769, 1770, 1771 and 1772 matters 
remained quiet except occasional disturbances, and the laws of 
England were executed with increasing difficulty. The colonists 
were not idle, however ; they were preparing as best they could 
for the impending conflict. 

^American Archives, vol. i., 15, 
^American Archives, vol. i., 16. 
^American Archives, vol. i., 17. 
* American Archives, vol. i., 22. 
^American Archives, vol. i., 19. 
^American Archives, vol. i., 26. 



1754-1783- 17 

On November 20th, 1772, the towns met in committee and 
complained of the fact that American revenue had been appro- 
priated by Great Britain to pay the judges and other officers of 
the law. It will be seen by this how jealous our ancestors were 
of outside influence being exerted upon their own officers.^ It 
required time in those days to make the facts known to the 
people and create a public opinion; this had been so exercised 
that in Parliament, May 6th, 1773, it declared that these Massa- 
chusetts Committees of Correspondence had used their utmost 
endeavors to work upon the minds not only of their own but also 
of the Southern people.^ Non-importation resolutions were passed 
by the mercantile associations in Boston, and by way of emphasis 
to them they threw overboard a cargo of tea in December, 1773 ; 
still other colonies sent cargoes back, notably New York/"* These 
acts England, under the leadership of Lord North, resolved to 
punish, and consequently the Boston port bill was passed and 
became a law March 31st, 1774.'' From the general tone of the 
debate which took place in the English Parliament it will be seen 
that the severest measures were thought necessary to subdue the 
refractory spirit of the colonies. These exciting events led to the 
calling together of the delegates of all the colonies^ at Philadel- 
phia September'^ 5th, 1774.^ 

That the spirit which animated the Americans at this time was 
not one ^f rebellion, may be gathered from the debate on the 
motion to re-peal the duty on teas, made April- 15th, 1774, in favor 
of which 49 votes out of 231 were given. Said Mr. Pennant : " It 
is similar to the raising of the ship money in King Charles' time." 

Captain Phipps having declared : " I perfectly agree that the 
Americans cannot resist," Mr. Fox replied that " the only reason 
urged against the motion is that the Americans cannot resist," and 
he was opposed to such an irritating policy. But Edmund Burke 
put the matter in the clearest light by saying :* " For nine long 
years we have been lashed round and round this miserable circle 



1 American Archives, vol. i., 27. 
^American Archives, vol. i., 28. 

^Governor Colden's letter, May 4th, 1774. American Archives, vol. i., 249. 
^This act closed the port, and established it at Marblehead. 
^Except Georgia. 

^Holst, vol. i., 3, says: September 4th. Compare American Archives, 
vol. i., 854. 

''Webster's Works, vol. i., 123. 

* Motion for Repeal of Duty on Tea. American Archives, vol. i., 135. 



1 8 1754-1783. 

of occasional arguments and temporary expedients. . . We 
have had them in every shape ; we have looked at them in every 
point of view. Invention is exhausted; reason is fatigued; ex- 
perience has given judgment; but obstinacy is not yet con- 
quered." 

It had been urged by the ministry that the Americans would 
take undue advantage of these concessions if they were granted ; 
to which Burke replied : " When Parliament repealed the Stamp 
Act in 1766, I affirm, first, that the Americans did not in conse- 
quence of this measure call upon you to give up the former par- 
liamentary revenue which subsisted in that country, or even any 
one of the articles which compose it."^ On the 4th of April, 1774, 
Samuel Adams wrote from Boston to Arthur Lee in London say- 
ing that the people were then in council : " Their opposition groius 
into a system : they are united and resolute ; and if the British 
government do not return to the principles of moderation and 
equity, the evil which they profess to aim at- preventing by their 
rigorous measures will the sooner be brought to pass, viz., the 
entire separation and independence of the colonics.'''^ The records of 
the various committees of correspondence show that the above 
was no exaggeration of the truth ; everywhere throughout the 
colonies the same tone pervaded the press and private cor- 
respondence.^ A single example from Virginia will suffice : 
" Resolved, that the cause of Boston is the common cause of all 
America,'"* etc. 

That these resolutions were of a solid character may be 
gathered from the following : " Resolved, that as British subjects 
who know the invaluable blessings of their birthright, we will not 
submit to the imposition of any taxes or duties, to be paid by the 
inhabitants of this dominion, by any other power than the General 
^Assembly, duly elected; and in them, and ihcm only, is ihc con- 
stitutional right vested." 

But these people did not rest with the passage of these resolu- 
tions. No ! they gave substantial proof of their willingness to 
devote their goods and money in aid of the cause as the following 
dispatches show: "Baltimore, July6th, 1774. — A vessel has sailed 
from the eastern shore of this province with a cargo of provisions 

-American Archives, vol. i., 136. 

^Letter to Lee, American Archives, vol. i., 239. 

^Correspondence, Proceedings. , American Archives, vol. i., 231 and seq. 

^Correspondence, Proceedings. American Archives, vol. i., 539. 



1754-1783. 19 

as a free gift to our besieged brethren at Boston.'" "Boston, 
August 29th, 1774. — Yesterday arrived at Marblehead, Captain 
Perkins, from Baltimore, with 3,000 bushels of Indian corn, 20 
bbls. of rye and 21 bbls. of bread, sent by the inhabitants of that 
place for the benefit of the poor of Boston, together with 1,000 
bushels of corn from Annapolis ... for the same benevolent 
purpose."^ These are but feeble indications of the spirit which 
prevailed everywhere; and they are worthy of note since they 
assist in the interpretation of events following which led to the 
fostering of an idea, which, if not entirely new in form, to this 
people was, at least, i/i extent, viz., the union of ail the colonies. 
They felt its need and selected delegates to express their belief 
in the necessity for union, in order to insure their safety, and to 
promote their happiness and prosperity. 

On the 19th of July, 1774,* the Assembly of Pennsylvania 
having been called together in extraordinary session considered a 
resolution passed by the House of Representatives in Massachu- 
setts to the effect that a meeting of the committees of all the colo- 
nies should be held at the City of Philadelphia on the ist of the 
following September.^ This proposition was acceded to, and 
deputies were appointed who received the following instructions : 
"You are to meet in Congress the committees of the several 
British colonies, ... to consult together ; ... to form and 
adopt a plan , . . of obtaining a redress of American grievances, 
. . . and in' doing this you are strictly charged to avoid every- 
thing indecent, or disrespectful to the mother state. "^ It will 
here be seen how reluctant the colonies were to do anything that 
could be construed into a rebellious act. 

Agreeable to this communication from Massachusetts which had 
been sent to all the colonies their deputies came together in Phila- 
delphia, and among the first resolutions passed was one agreeing 
that there should be no importation of English goods after the 
first day of December following." This was in substance the same 
as the resolutions passed by the people of Suffolk Co. in Massa- 



' Correspondence, etc. American Archives, vol. i., 593. 
-Correspondence, etc. American Archives, vol. i., 593. 
"^"Bancroft says: The first proposal for "a general congress came from 
New York, in May, 1774." — Hist. U.S., vol. vi., 16, 17. 

^Correspondence, etc. American Archives, vol. i., 603, 604. 
^Correspondence, etc. American Archives, vol. i., 608, 609. 
^Continental Congress. American Archives, vol. i., 905. 



20 i754-i783- 

chusetts September 9th/ and in Hartford, Connecticut, Septem- 
ber i5th.'^ A bill declaratory of their chartered rights and of 
their grievances was passed October i4th,'^ and an address to the 
people in Canada was resolved upon on the 26th of the same 
month which contained some of the more important principles 
which afterwards served as fundamental in the articles of the 
Constitution/ This congress was called the first Continental 
Congress, and comprised some of the well-tried delegates of the 
conventions held at Albany in 1754 and at New York in 1765. 
It dissolved itself," in order that a new body might be elected by 
the people and an opportunity given for the approval or disap- 
proval of their action, •* appointing the following May (1775) as 
the time for the assembling of the subsequent congress. Up to 
this time these delegates had been chosen by their respective 
Legislatures, but now it Avas determined to submit their election 
to the people, the people chosing committees who met and selected 
the delegates, e. g., in Calvert County, Maryland.^ The Massa- 
chusetts provincial assembly met in December and chose dele- 
gates to the congress which was to meet in May (10th), who were 
instructed, or rather given full "power, to concert, direct and 
order such further measures "" as should seem to be for the best. 
During this time the colonies were not without powerful sym- 
pathy and important aid and counsel from abroad. In England 
Burke and Chatham^ (Pitt) defended their cause with great tact 
and eloquence; besides there were agents such as Franklin and 
Lee,'*^ who kept them well informed of the effects of their action. 
Chatham, having in mind the resolutions of the Philadelphia 
Congress, said to Arthur Lee: "The whole of your countrymen's 
conduct has manifested such wisdom, moderation and manliness 
of character as would have done honor to Greece and Rome in 



^American Archives, vol. i,, 776 and seq. 

^American Archives, vol. i., 778. 

^American Archives, vol. i., 910. 

■* American Archives, vol. i., 930-4. 

^American Archives, vol. i., 977 ; OctoVjer 26, 1774. 

"Many of the delegates were fearful of the results of their action, since, by 
the signing of the American Association Compact, October 20th, 1774, they 
had virtually begun to assume direct authority in the country — an act not con- 
templated by their constituents, 

■^American Archives^ vol. i., 983. 

^American Archives, vol. i., 998. 

^American Archives, vol. i., 1058, 
1 "American Archives, vol. i., 1058. 



I754-1783. 21 

their best days.'" But these cahn resolutions arrived at by the 
first Continental Congress and endorsed by the various assemblies" 
of the colonies during the winter of 1774-5 were not obtained 
without considerable friction among the delegates. There were 
difficulties .presented by the " non-exportation resolution " which 
threatened at one time to dissolve the congress, but these were 
happily set aside by the prevailing desire to preserve harmony in 
their midst."'' Before the meeting of the second Continental 
Congress May loth, 1775, active hostilities had begun,^ of which 
it is not my purpose here to speak except to remark that they had 
very great weight upon the deliberations of that body. These 
representatives were for the most part uninstructed, as at the time 
of their election matters had assumed such a threatening aspect 
that the most of the colonies deemed it wise and prudent to 
repose full confidence in their delegates. A few examples will 
suffice to show this. New Hampshire, through her legislature, 
voted that her delegates have " full and ample power in behalf 
of that province, to consent and agree to all measures which 
said congress shall deem necessary to obtain redress of Ameri- 
can grievances;"'" and Maryland declared that they "felt that 
the measures to be adopted by the Continental Congress must 
depend much upon events which may happen to arise.'"' In 
those colonies, immediately in danger of hostilities, committees 
of safety ' were added to the already acting committees of 
association and correspondence. The first assumed extraor- 
dinary powers, and did not hesitate to exert them against 
traitors ; the second were especially to see to the enforcement 
of the rule not to allow the importation or exportation of cer- 
tain articles of trade, and the third were the medium of com- 
munication between the different colonies. The Congress of 
Philadelphia began at once to assume the direction of affairs 
by appointing a committee of ways and means' to raise and 
equip an army, for the command of which George Washington 



^American Archives, vol. i., 1059. 

^Amei-ican Archives, vol. i., 1135 ; also, ii56-'6o ; also, vol. ii., 126. 

^American Archives, vol. i., hit. Georgia was not present at the Phila- 
delphia Congress, hence the importance of her endorsement. — American 
Archives, vol. i.. 1135. 

•*At Lexington. American Archives, vol. ii., 359. 

^Correspondence. American Archives, vol. i., 1181. 

^American Archives, vol. ii., 380 ; also vol. ii., 1822-24. 

''American Archives, vol. ii., 1847. 



22 1754-1783- 

was appointed.' On the 6th of July, 1775, a declaration of 
reasons for appealing to arms passed," and addresses, which 
anticipated, in a degree, the Declaration of Independence, were 
sent to Canada, Ireland and England. The regular business of 
a government was begun — money was issued ; commissions were 
given to officers to enroll and drill the militia, and letters of 
marque were granted to seamen. On the 21st of July Dr. Franklin 
submitted certain "Articles of Confederation" — in all thirteen. 
The first named this country " The United Colonies of North 
America;"^ the second stated that they were entered into "a 
firm league of friendship with each other." .This league they 
intended to be a lasting one, since they bound not only them- 
selves but "their posterity;" by the third each colony was to 
retain its own laws, and its assembly was to make its own con- 
stitution ; the fourth stated that the delegates were to be elected 
annually, and that the seat of Congress should be held succes- 
sively in each of the colonies ; by the fifths Congress was to 
determine war or peace, send and receive ambassadors, settle 
disputes between the colonies, plant new colonies, build post- 
roads, etc. Article VI., divided the general expenses of the Con- 
federacy between the colonies according to the population; by 
Article VII., the delegates were to be apportioned — one to every 
five thousand electors — a census for this purpose to be taken 
every three years; Article VIII., made one-half of the regular 
members necessary to form a quorum, each delegate to have 
one vote and the power to vote by proxy in case of absence ; 
Article IX., established an executive council of twelve persons, 
chosen from their own body, of whom one-third were chosen for 
one year, one-third for two years and one-third for three years. 
As these terms expired the vacancies were to be filled for three 
years, by which means one-third of the members would be 
changed annually. By Article X., no colony was to engage in 
war with the Indians except with the consent of Congress ; 
Article XL, alliances were to be made with the Indians ; 
Article XII. , allowed amendments to be made to the Articles 
by proposals from the General Congress, and approved by a 
majority of the colonial assemblies ; Article XIII., provided for 



^June 14th, 1775. 

'American Archives, vol. ii., 1865. 

'American Archives, vol. ii., 1887-88. 



:754-i7S3. 23 

the possible application and admission of other British colonies. 
In the preceding Congress a plan was submitted which was 
somewhat similar to that proposed at the Albany Convention in 
1754/ This was to form a British and American Legislature, 
including all the colonies, these to be presided over by a presi- 
dent general appointed by the king, and a grand council of repre- 
sentatives chosen by the people, in their respective assemblies, 
once every three years. ^ This grand council was to have the 
same rights as the British House of Commons. The assent of 
the president was necessary to make laws valid, and he was 
to see to their execution. This proposition is unimportant? 
except in so far as it shows the germs of the future constitu- 
tion f nor did all of the Articles proposed by Franklin find 
ready acceptance until some changes had been made in their 
contents. 

The first indication of a foreign policy is noticeable in a letter 
to M. Dumas from Benj. Franklin, dated Philadelphia, Dec. 19th, 
1775, wherein he sought to ascertain if any foreign power would 
step to their relief in case they broke off all connection with 
England.^ That these ideas had begun to extend throughout the 
country, and that they in some instances excited alarm may be 
judged from the instructions given by the Maryland Convention 
Jan. 12th, 1776," to her delegates in Congress, wherein among 
other directions they were to "assent to no proposition to declare 
these colonies independent of the Crown of Great Britain, nor to 
any such for making or entering into alliance with any foreign 
power, nor to any union or confederation of these colonies which 
may necessarily lead to a separation from the mother country," 
etc. They, however, provided that in case the great majority of 
the colonies thought it necessary that there be such a separation 
and union then the delegates from Maryland should call the 
Assembly together for them to consider and ratify the same ; 
otherwise they would not be bound by the decision of Congress. 
Here the first indication of one of the articles of the future consti- 

^In the first Continental Congress, Patrick Henry, a delegate from Vir- 
ginia, had declared that the colonies were one united whole ; but no one 
agreed with him, since the States rights idea was so prominent that it was re- 
solved to give each colony one vote. 

^American Archives, vol. i., 905. 

^ Since it was not accepted by the Congress. 

^Letter to Dumas. American Archives, vol. iv., 352. 

^American Archives, vol. iv., 738, 739. 



24 PREPARING THE PUBLIC MIND FOR INDEPENDENCE. 

tution is seen, viz., that no officer holding a command or position 
of trust under the general government should be eligible to a 
seat in Congress.^ They were also instructed to move and vote 
for the keeping of the journals of Congress in such a manner 
that the votes of the representatives of each colony should be 
clearly seen. 

PREPARING THE PUBLIC MIND FOR INDE- 
PENDENCE. 

At the beginning of the year 1776 a pamphlet entitled "Com- 
mon Sense " made its appearance ; and so truthfully did it appeal 
to the facts in the case that it created at once an almost universal 
consideration of the idea of colonial independence. It gave rise 
to a series of articles, discussions and addresses which served to 
prepare the people, however much bowed down and humiliated by 
desperate rulers, for a hitherto unthought of resort. This appeal 
might be, in its results, compared to " Fichle's " Reden an die 
deutsche Nation " during the occupation of Germany by Napo- 
leon I., for here as there, subdued energies were reawaked and 
quickened by the idea that it was a life and death matter. The 
united front presented by the colonies in opposition to the enact- 
ments of parliament led the British to a specious change of tactics, 
by appointing commissioners to come to America and propose a 
settlement. Cassandra, one of the writers of that day, declared 
that Britain's policy was now " Divide et impera ; " that she was 
only seeking to gain time for the better preparation and disposi- 
tion of her forces."^ More than all, this hardy people were warned 
against the corrupting influence of British gold; and British writers 
such as C<2/<?^ who were ever portraying the horrors of war and 
the blessings of peace, as well as proclaiming that there could be 
no security of life or property if a separate government were to 
be declared by people who were "avowedly" intent upon intro- 
ducing a republican scheme. Cato held that the true interest of 
America lay "in reconciliation . . . upon constitutional princi- 
ples,"^ to which Cassandra replies that, "liberty or slavery is the 
question ; " that the present war is one " of constitutions and of 



^American Archives, vol. iv., 739, 740. 

^Correspondence, etc. American Archives, vol. v., 42, 922. 
^Correspondence, elc. American Archives, vol. v., 187. 
^Correspondence, etc. American Archives, vol. v., 443. 



PREPARING THE PUBLIC MIND FOR INDEPENDENCE. 25 

legislatures;" of the British Parliament with the Colonial Assem- 
blies. He then proceeds to show the defects of even the Ameri- 
can charters as compared with that of King John (Magna Charta); 
pointing out especially the feeble control which the Colonies had 
over their foreign governors/ and that the only way for them to 
do was to follow the example of the English barons and draw 
their swords. 

Thomas Paine" had shown the uselessness of hoping for foreign 
aid so long as there was no separation from the mother country, 
as well as the futility of mediation by a neutral power so long as 
it remained a family quarrel. Candidus," in an essay intended 
to disabuse the mind of the people from the idea that England 
had always cared for and protected them, declared that they had 
always been " orphans rather than children ; " that they had rather 
been "milked than suckled." The fears of the people were 
excited by predicting religious and other internal wars which were 
at that time more distracting than the British army and navy; to 
quiet which Salus Populi^ showed that there was no need of 
making one system of religion more exalted than any other, and 
that England would "sooner treat" with them as independent 
states than grant what they demanded while they acknowledged 
subjection ; that to demand peace when it was manifestly impos- 
sible was ruinous and debasing. This writer laid down the fol- 
lowing reasons why they should not be misled by those who 
claimed that a republic was in the highest degree dangerous to the 
welfare of the solid citizens, and who sought to divide the Colo- 
nies in order to prevent their success : First — If the Colonies do 
divide on the question it will not prevent the independence of 
those who fight. Second — The provinces which submit will be 
engaged in trade and agriculture, and consequently they will be 
inexperienced in the use of arms, while those who fight will become 
expert warriors. Third — The continent will be divided into 
Northern and Southern (for Virginia will never submit, and the 
Carolinas, if not Maryland, will join her). Fourth — While there 
is land to settle, and two empires or republics on the continent, 
there will be war. Fifth — When Great Britain is compelled to 

^Correspondence, etc. American Archives, vol. v., 923. 
^"Common Sense." 

^American Archives, vol. v., 86. See also " Plain Hints," New York, 
March 14th, 1776. American Archives, vol. v., 2ri. 

■* Proceedings, etc. American Archives, vol. v., 96-99. 



26 PREPARING THE PUBLIC MIND FOR INDEPENDENCE. 

recognize their independence who will protect those colonies 
which submitted from the resentment of the incensed warriors 
whom they deserted ? ' 

To understand the force of this logic one need only remark 
the geographical position of the Colonies. Those most favorable 
to English influence were New York, New Jersey, Pennsylvania 
and Delaware ; while the East and South were irretrievably com- 
mitted to war. In answer to the objections made by some, viz., 
that the Congress was not a legal body, "Sommers,"^ quoting from 
Coke's Commentaries, said that, " Nothing that is contrary to reason 
is lawful ; " from which proposition he drew the converse, " Nothing 
can be unlawful that is reasonable." The appointment of a general 
Congress being founded on reason cannot therefore be illegal, but 
in case it were so then the present king's title was invalid ; for the 
revolution of 1688 must have been illegal, since the English 
people met by their representatives, not in parliament but in con- 
vention, and determined to banish their king. Hence the English 
should not be allowed to treat with the assemblies separately but 
with Congress. Even the ghost of General Montgomery was made 
to speak to the people and tell them that the ravages of war were 
transitory and limited in their effects ; but those of slavery were 
extensive and lasting; that their interest lay in independence, 
and that a people virtuous enough to resist the most powerful 
nation in the world should not lack the wisdom necessary to form 
a more perfect government.'^ Yet others appealed to the people 
from a commercial standpoint, s. g., ''An American," who said: 
" Although the English cannot make wine, raise silk, grow olives, 
citrons, oranges or lemons, yet we are forced to buy those 
articles oi them only.'' He argued also that a trade was necessary 
in order to procure the necessary manufactured articles of Europe, 
and now that the ports were blockaded they ought to invite for- 
eigners to that trade. On March 2TSt a letter wns written in New 
York which advised the " laying of a plan for a more sound con- 
stitution and perfect scheme of government," and to this end 
advised that the Continental Congress propose a " solemn stipu- 
lation or confederation of all the colonies to be established and 



^American Archives, vol. v., 98. 
^A Virginian. American Archives, vol. v., 122. 

^"Dialogue between a delegate and General Montgomery." American 
Archives, vol. v., 128. 



PREPARING THE PUBLIC MIND FOR INDEPENDENCE. 



27 



ratified."^ This writer proposed that there should be general 
regulations for commerc£, for defence, for a perpetual congress, 
for a controling power to weigh and decide disputes between 
them, and to have general supervision over all continental affairs. 
He also foresaw the necessity of leaving each State to the entire 
management of its own affairs.^ Another writer, in a letter to 
Alexander Purdie, dated April 12th, 1776,"' favored not a perma- 
nent, but a temporary, declaration of mdependence, by which 
means it was deemed possible to set the wheels of commerce once 
more in motion. Some there were who endeavored to show, and 
did show, that congress had always been clearly on the side 
opposing independence.'* 

Gerry, in a letter to James Warren, the President of the Pro- 
vincial Assembly, urges the Massachusetts legislature to pass reso- 
lutions of independence, as it would have a good effect upon the 
doubting colonies which were then on the point of instructing 
their delegates to oppose it.'' " Cato," to whom I have already 
referred, addressed all of his letters to the people of Pennsylvania ; 
whereupon " The Forrester," noticing it, said : " The great busi- 
ness of the day is continental' and not limited to any State in par- 
ticular." 

Hampden, in a letter dated May ist, 1776, favored a constitu- 
tional, but not entire, independence of England, and pleaded for 
the British form of government as being the best in the world ;^ 
and to burst asunder the bonds with England would be to destroy 
the bands of "religion, of oaths, of laws, of language, of blood, of 
interest, of commerce." It was on the contrary held by "A 
Planter" that the state of the controversy was very different now 
(April 6th, 1776,) than before they had taken up arms, since the 
whole mode of government had been, changed ; and he ("A 
Planter") favored a free and independent republic. This same 
" Planter " exclaimed with unrestrained fervor, " They have the 
insolence to demand an acknowledgment of the right to alter, cut 
up, new-model, and annul our charters whenever a whimsical 
minister takes it into his head that he is not complaisantly 



1 American Archives, vol, v., 450. 
-American Archives, vol. v., 451. 
"^American Archives, vol. v., 860. 
^American Archives, vol. v., loii. 
^American Archives, vol. v., 505. 
^American Archives, vol. v., 530. 
'''American Archives, vol. v., 11 57. 



28 DECLARATION OF INDEPENDENCE, Etc. 

treated, because we refuse to choke ourselves with tea, or to glut 
the avarice of half a million of swag-bellied pensioners out of our 
private purse, and to be bound by their laws in all cases whatso- 
ever.'" Arguments were at hand also to prove that the war 
would not be an expensive affair in the end, but that it would 
rather be of benefit to the country financially." 

It will be observed from the above selections and quotations, 
that the all-important part of educating the people up to the idea 
of proclaiming their independence through their conventions, 
assemblies and the Continental Congress, was not neglected by 
the leaders of public opinion. 

PREPARING THE WAY TO A DECLARATION OF 

INDEPENDENCE BY THE STATE 

LEGISLATURES. 

Urged on by the people the State Legislatures now began to 
act. Massachusetts considered the question in her town meet- 
ings May 2oth,^ the result being a unanimous vote in its favor. 
North Carolina had already instructed her delegates to vote for 
it, and Rhode Island and Connecticut"* followed soon after. Vir- 
ginia did the same on May i5th.^ In Pennsylvania the people 
were in favor of it, but the assembly had instructed the delegates 
to oppose it." This was the case in New Jersey and Maryland, 
while New York, Delaware and South Carolina had not yet given 
instructions to their representatives. After the measure had been 
introduced (June 7) in congress the force of public opinion com- 
pelled Pennsylvania, New Jersey and Maryland to alter their 
instructions. New York gave her sanction after it had been made 
(July 9th).' and Pennsylvania also soon after, both States having in 
the meantime changed their proprietary to a popular form of gov- 
ernment.* Maryland had also changed front, and had empowered 



^American Archives, vol. v., 494. 

^American Archives, vol. v., 914, 91 5. 

^Hildreth's Hist. U. S., vol. iii., 133. 

^Bancroft's Hist. U. S., vol. vii., 281. 

^Bancroft's Hist. U. S., vol. vii.. 236 and seq. 

''Bancroft's Hist. U. S., vol.. vii., 245. 

^Hildreth's Hist. U. S., vol. iii., 137. 

^Hildreth's Hist. U. S., vol. iii. In Pennsylvania there were many German 
families who, early in the eighteenth century, had migrated thither, and these 
Germans were the first to petition for the right to take part in the choice of 
officers, on the ground that they " paid taxes." The result is seen in the above 
change of government. 



DECLARATION OF INDEPENDENCE, Etc. 29 

its delegates on the 28th of June " to concur with the other 
United Colonies, or a majority of them, in declaring the said 
colonies free;ind independent States." 

During this time the various State governments were shedding 
their British coats and gradually arraying themselves in the 
apparel of sovereign, states. The active operation of hostilities 
with Great Britain led to much confusion in the internal affairs of 
the colonies. The governors, who were thorough loyalists,' not 
being in sympathy with the people, finding that they could do 
nothing with their assemblies, dissolved them and refused to call 
them together at the times appointed in their charters; and upon 
the coming together of the people in their conventions they fled 
some to their ships of war, where they remained for a time, and 
others leaving the country entirely. Special conventions of the 
people being now organized, they appointed the special commit- 
tees'^ already mentioned for their defense while they were engaged 
in forming provisional governments. Congress, in answer to a 
petition of Massachusetts as to what form of government she 
should adopt, had replied that it would be best for the colonies to 
organize at present in accordance with their former charters.=^ 
New Hampshire^ leading the way formed her state government 
Jan. 5th, 1776, giving as her reason for so doing the following: 
"The sudden and abrupt departure of his excellency, John Went- 
worth, Esq., our governor, and several of the council, leaving us 
destitute of legislation, and no executive courts being open to 
punish criminal offenders . . . therefore, for the preservation of 
the peace and of good order . . . we consider ourselves reduced 
to the necessity of establishing a form of government to continue 
during the present unhappy and unnatural contest with Great 
Britain. 

In accordance with their plan, there was an Upper and a 
Lower House comprising the legislature. No act was to become 
a law unless passed by both branches of the legislature ; all 
appropriations must originate in tlie popular branch, and neither 
branch could adjourn for a longer time than from Saturday until 
Monday without the consent of the other.^ It was further pro- 

1 Neumann. Die Vereinigten Staaten, vol. i., 236. 
•^Hildieth's Hist U. S., vol. iii., 44. 
^Hildreth's Hist. U. S., vol. iii., 78. 
*Hildreth's Hist. U. S., vol. i., 502. 
^American Archives, vol. v., 2. 



30 DECLARATION OF INDEPENDENCE, Etc. 

vided that, in case the existmg difficulties were not settled before 
the terms of the present members of the council expired, then 
the people should elect their successors in a manner to be deter- 
mined by the assembly, provided also that the Continental Con- 
gress did not make provision therefor.^ From this later clause 
we see the voluntary recognition of the General Congress as the 
supreme authority. The example of Colonel Eathen Allen, a 
provincial officer commanding, not continental, but State troops, 
proves this — he capturing Ticonderoga. " In the name of the 
Great Jehovah and the Continental Congress'^ From the record of 
proceedings, there appears to have been some opposition to this 
plan — chiefly because it was thought that New Hampshire was 
too small to take the lead in so weighty a matter, and partly be- 
cause '• it appeared like setting up an independency " to the 
English.' 

Still another protest shows how conservative the people were 
(some at least). " We humbly conceive that such a measure is 
an open declaration of independence, which we can by no means 
countenance until we shall know the sentiments of the British 
nation in general." These objections were ineffectual, however, 
and the new government was proclaimed by the council and 
assembly, March r9th, 1776/ Rhode Island and Connecticut 
having already a democratic government under their charters, did 
not need to adopt a new form. South Carolina adopted a form 
of government which she called a constitution^ March 26th, 1776. 
Article II., provided for the election of a legislative council, to be 
chosen from the assembly. Article III., for the election of a presi- 
dent and commander-in-chief, who was to be chosen from their 
own body or from the people at large, by the joint action of both 
Houses; also a vice-president in the same way. By Article V., a 
privy council was chosen to give advice to the president, although 
he was not bound to consult them.** Art. VII. — The legislative 
council could not amend or alter bills appropriating money or 
levying taxes, but all other bills coulci originate in either House, 
and be amended or altered by either, while to the president was 

^The counselors had been chosen from the assembly itself. 

^American Archives, vol. v., 2. 

^May loth, 1775. 

•* American Archives, vol. v., 7. 

^American Archives, vol. v., 31. 

•^Constitution of South Carolina. American Archives, vol. v., 611. 



DECLARATION OF INDEPENDENCE, Etc. 3] 

given the power of accepting or rejecting them.' Art. VIII. — The 
president could not prorogue, adjourn or dissolve the Houses; but 
he could call them together before the time regularly set for their 
assembling. Their representatives could not hold office in either 
the State or Continental service ; '^ and they were to meet every 
two years on the first Monday in December.^ The vice-president 
who presided over the privy council became president in the 
event of that officer's death or disability."* The delegates to the 
Continental Congress were to be chosen by the joint ballot of both 
Houses." The president could appoint men to fill vacancies wi'lA 
the advice and consent of the privy council.'* These chief offices of 
president, vice-president and privy council were equal in dignity 
to the former governor, lieu t. -governor and privy council.^ The 
fall of the proprietary government in Pennsylvania was due to the 
fact that it opposed independence,*" the people taking the mat- 
ter into their own hands in convention July 15th, 1776.^ The 
New Jersey State government began its work in xVugust of the 
same year, and North Carolina at the close of it (December 
i8th).^" On the 5th of February Georgia framed her State 
constitution," while New York did the same April 20th, 1777. 
According to this State's constitution the governor was to be 
elected by the people, the first instance of the kind under the 
new governments. 

On the loth of May, 1776, a committee of the Continental 
Congress consisting of John Adams, Lee and Rutledge reported 
the draft of a resolution recommending " to the respective assem- 
blies and conventions of the United Colonies, when no govern- 
ment sufficient to the exigencies of their affairs hath been hitherto 
established, to adopt such government as shall, in the opinion of 
the representatives of the people, best conduce to the happiness 
and safety of their constituents in particular and America in gen- 

^In 1780 this negative power was withdrawn, and a new and more demo- 
cratic constitution took the place of this one. 

^Article X. South Carolina Constitution. 

3 Article XI. South Carolina Constitution. 

* Article XIV. 

5 Article XV. 

^Article XXIV. 

^Article XXXI. 

^Bancroft's Hist. U. S., vol. vii., 245. 

^Hildreth's Hist. U. S., vol. iii., 137. 
i»Hildreth's Hist. U. S., vol. iii., 183. 
iiilildreth's Hist, U. S., vol. iii , 1S5. 1777. , 



32 DECLARATION OF INDEPENDENCE, Etc. 

eral.'" On the 7th of June following Richard Henry Lee intro- 
duced a resolution which was discussed on the 8th, 9th and loth 
following ; afterwards it was postponed until the ist of July,^ when 
a committee was appointed to draft a Declaration of Independ- 
ence.'^ The members of this committee were Th. Jefferson, J. 
Adams, B. Franklin, R. Sherman and R. R. Livingston; but the 
composition of the document was by Jefferson, notwithstanding 
the fact that the original is interlined in Dr. Franklin's hand 
writing. 

This Declaration was passed, copies of it ware sent off to the 
various States, and it was read at the head of the army July 4th, 
1776; yet it was not engrossed and signed until Aug. 2d follow- 
ing, and then many new members, not present before, added 
their names to it.^ 

While these events were in progress Articles of Confederation 
were undertaken," but' they were not finished until the following 
year.*^ Much difficulty was experienced in getting them ratified 
by the several States ; New York, New Hampshire, North Caro- 
lina and Virginia agreed without opposition, while the other States 
proposed various amendments which Congress rejected ; all of the 
States, however, except' Delaware and Maryla.nd," soon ratified 
them, so that a proclamation was issued declaring them to be the 
law of the land July 8th, 1778, but they were in fact inoperative 
until all the States had ratified them.^ During a part of the time 
in which Congress was deliberating'" — six months — dictatorial 
powers were given to General Washington, and at a later date, 
Congress being compelled by the events of the war to remove to 
Lancaster from Philadelphia, Washington^ was invested with 
extraordinary powers." The newly-arranged government begin- 
ning its work it was soon found to be much weaker than the old 



^Journal of Congress, vol. v., 208 ; Hoist, Verfassung, u. Demokratic, vol. 
i., 17 ; American Archives, vol. v., 1701. 

^Compare Riittimann, Nordamerikanische Bundesstaats Reclit., p. 22 
and especially Neumann, " Die Vereinrgte Staaten, vol. i. , 241, 242. 

^Webster's Works, vol. i., 123. 

^Hildreth's Hist. U. S., vol. iii., 137. 

^June nth, 1776. Hoist says, July 1 2th. 

^November 15th, 1777 ; Riittimann, 24. 

Tebruary, r779. 

^March, 1781. 

»Hildreth's Hist. U. S., vol. iii., 266. 
lOHildreth's Hist. U. S., vol. iii., 166. 
iiHildreth's Hist. U. S., vol. iii., 221. 



DECLARATION OF INDEPENDENCE, Etc. 33 

"association " which had been the sudden offspring of necessity. 
It lacked unity and harmony of action ; the different local inter- 
ests failed to harmonize with the more general interests of the 
country. Under these articles — some twenty in number — the 
chief points were : as to the political power which each State 
should have in Congress, and whether it should be determined by 
wealth or population; the basis upon which taxes were to be 
levied and troops raised ; and as to the division of the unsettled 
western lands. As adopted the articles retained the system of 
voting by States, but in all important affairs three-fourths or nine 
States must assent.^ Besides this the decisions of Congress had 
to be carried back to the several States for their ratification, when 
the States had not, by special act, delegated this power to their 
delegates in the Congress, and these conflicting interests seldom 
agreeing led to the downfall of the Articles of Confederation.^ 
Their weakness had been felt even before the peace of 1783,'^ but 
especially afterwards, when the dangers of war being past, becom- 
ing confident of their security became more selfish of their own 
State matters."* Hoist, the best of the German historians on our 
form of government, says that the dangers of the war served to 
unite the people against the common enemy, but when relieved of 
the danger they relapsed into a short-sighted and selfish particu- 
larism.^ By one of the articles of the confederation taxes were to 
be levied ^^upon the valuation of land under cultivation and of 
houses in the towns, but as no valuation was ever ascertained the 
collection of the taxes went by default. Congress seldom having 
a quorum present, and nine States, with not less than two mem- 
bers from each being necessary to do business, it may readily be 
seen how imperfectly this machinery worked governed from each 
colony. During the war Congress had appointed various commit- 
tees from its own body to superintend the different departments 
of government, but towards its close they were put under the 
control of a single head.'' The department of finance was given 



^Hildreth's Hist. U. S., vol. iii., 597. 

^Holst, " Verfassung, u. Dem.," vol. i., 21. 

^Holst, "Verfassung, u. Dem.," vol. i., 33, note. 

* Hoist, vol. i., 24, note. 

°" Hinsichtlich ihrer Beziehnngen zu einander aber waren sie in einem 
ebenso kurzsichtigen und engherzigen Particularismus befangen wie je zuvor." 
— Hoist, vol. i., 9. 

^Hildieth's Hist , vol. iii., 404, 405. 



34 



DECLARATION OF INDEPENDENCE, Etc. 



to R. Moris, who raised money upon his own credit/ So long as 
Congress had retained the power and authority of government 
given to it at the outset, and so long as its paper money was 
accepted, its rule was obeyed; but, after the adoption of the 
articles, its paper money fell in value to almost nothing,^ and 
" not worth a continental " became, and is to this day, a by-word 
in America. Moreover, laws enacted by Congress could not be 
executed in the States to which they were unacceptable, and 
payments of debt could not be enforced.'^ Failures on the 
part of one State served as an excuse for others.i Even the 
commercial regulations of Congress became antagonistic to the 
several States,^ and each State looked upon the other, in a sense, 
as a foreign State,® while the adjacent wild lands were fast be- 
coming huge bones of contention.' The bonds of union which 
had been so close during the War for Independence were now 
almost dissolved, and it was with apprehension of future calamity 
that those great and untiring patriots, who had thus far piloted 
the colonial ship of state, looked upon this wild state of affairs. 
Distress was general, and the army, for lack of pay, dwindJi^d 
away to eighty men.^ The exact situation of affairs may be 
gathered from an article in the " Federalist," edited by Hamilton 
and Jay of New York: "Each State yielding to the voice of 
immediate interest or convenience successively withdrew from 
the Confederation, until the frail and tottering edifice was ready 
to fall upon our heads and crush us beneath its ruins." Besides 
the commercial difficulties — by which American vessels were 
allowed by Great Britain only to 'carry goods from their own 
States (each State regulating navigation laws) — there were civil 
disorders which distracted the country, and showed clearly 
enough that unless there was a central government of sufficient 
authority to enforce the laws and prevent disorder, anarchy 
would be the result.^ An additional fault was that foreign gov- 
ernments did not know how to treat a government which was 



^Hildreth's Hist., vol. iii., 361. 

^Hildreth's Hist., vol. iii., 361. 

^Hildreth's Hist., vol. iii., 403.. Hoist, vol. i., 34, note ; also, vol. i., 39, note. 

^Hildreth's Hist., vol. iii., 434,435. 

"Hildreth's Hist., vol. iii., 427, 428. 

^ Hoist, vol. i., 35, note. 

'''Hildreth's Hist., vol. iii., 397-400. 

''Hildreth's Hist., vol. iii., 451. 

^Hildreth's Hist., vol iii., 473-7. 



DECLARATION OF INDEPENDENCE, Etc. 35 

made of thirteen parts,^ all claiming to be sovereign,^ and which 
Washington called "a rope of sand."^ Chancellor Kent, of New 
York, says in his commentaries : " Most of the federal con- 
stitutions in the world have degenerated because they were 
sovereignties over sovereigns, and legislations not for private 
individuals, but for communities in their political capacity;" 
and, further, that " the great and incurable defect of all former 
federal governments, such as the Acaen League in Greece, the 
Germanic, Helvetic, and Hanseatic in Germany, and the Dutch 
Republic in Holland was the same.'"* To change this state of. 
aftairs was seen to be necessary even before the Articles of Con- 
federation went into operation; for, as early as 1780, Alexander 
Hamilton had written to James Duane, a delegate in Congress 
from New York, in which he showed the defects of the Articles of 
Confederation, and pointed out the need of a national govern- 
ment endowed with the requisite powers to make itself felt and 
respected. 

Shortly after this a resolution was introduced in the Legis- 
lature of the State of New York,^ July 21st, 1782, by General 
Schuyler (undoubtedly at the suggestion of Hamilton, who, 
although a delegate in the Continental Congress, was there 
present), which declared that " the radical source of most of our 
embarrassments is the want of sufficient power in Congress ; that 
the conf^ederation is defective in several points, particularly in 
not vesting the Federal Government with the power of providing 
revenue for itself, and it would be advisable to propose to Con- 
gress to recommend, and the States to adopt, measures for as- 
sembling the States in a convention, to amend and revise the 
Articles of Confederation." Although stirring addresses were 
sent out by Congress'' nothing seems to have resulted from these 
recommendations, and matters remained in status quo until in 
January, 1786, when a proposition came from the State of Vir- 
ginia calling for a convention of delegates from the several States 
to regulate our commerce with foreign nations.' This convention 



^ Hoist, vol. i., 37, note. 

-Hoist, vol. i., 19, notes. 

^Compare Hoist, vol. i., 21, note. 

^Kent's Commentaries, vol, i., 218. 

^Journals of Senate and Assembly of New York for July 2oth and 21st, 1782. 

•"^Hildreth's Hist., vol, iii., 435-6. 

'''The necessities of commei-ce were becoming urgent, and it began to be 
realized that a strong general government was indispensable to win foreign 
respect. 



36 DECLARATION OF INDEPENDENCE, Etc. 

met at Annapolis in Maryland, in September of the same year, 
but as there were but five States present, the delegates deemed it 
inadvisable to attempt anything more than to recommend Con- 
gress to take such action as should make a secure and permanent 
government for the States, and such as would place them upon 
more equal terms with foreign powers. The Federal Congress, 
then in session, coincided with these views, and recommended 
what had been proposed four years previously in New York — viz., 
a convention of delegates from all the States, " to revise, amend 
and alter " the Articles of Confederation. 

In accordance with this recommendation- a convention met in 
Philadelphia May 14th, 1787,^ all the States being present except 
Rhode Island. After many months' debate and deliberation," a 
series of articles, called " The Constitution," was agreed to with 
great unanimity,^ and submitted to the States^ for their ratifica- 
tion. Nearly a year elapsed before it received the required assent 
of two-thirds of the States. The first State to ratify it was Dela- 
ware,'^ and the others followed in the order here named : Penn- 
sylvania,'^ New Jersey,^ Georgia,® Connecticut,^ Massachusetts,^" 
Maryland," South Carolina,^^ New Hampshire,'^ Virginia ^^ and 
New York,^^ while North Carolina and Rhode Island did not come 
into the Union until some time afterwards. A provision had 
been inserted in the Constitution to the effect that as soon as the 
ninth State had adopted the articles, arrangements should be 
made for putting the new government in active- force. Accord- 
ingly, Congress appointed the first Wednesday in January as the 
day for choosing the electors ; the first Wednesday in February 
for the election of the President and Vice-President, and the first 



^Washington being President. 

2 Hoist, vol. i., 66, note. 

•^September 17th, 1787. Compare Ilildreth's Hist., vol. iii., chap. 47. 

^September 28th, 1787. 

"December 7, 1787. 

''December 12,. 1787. 

'=' December 18, 1787. 

** January 2, 1788. 

^January g, 1788. 

10 February 7, 1788. 

11 April 28, 1788. 
i2May 23, 1788. 
isjune 21, 1788. 
i4June 27,' 1788. 
15 July 26, 17S8. 



THE CONSTITUTION. 37 

Wednesday in March^ as the day for the inauguration of the new 
government, Washington receiving the unanimous vote of the 
electors became the first President, and John Adams having the 
next highest in number of votes became Vice-President. 

The new government assumed the name " United States of 
America," having for its guide a charter of rights granted by a 
Sovereign People to a Sovereign People, and called 

THE CONSTITUTION. 

(general remarks.) 

While it is true that this instrument partakes of many of 
the characteristics of the English Constitution, yet it may be 
confidently said to be the outgrowth of American experiences 
and precedents — ^just as much so as the common law of England 
was the outcome of a long series of facts. The American Con- 
stitution was a great and surprising' success, when considered in 
the light of the concessions which the different colonies made 
of their own prejudices and supposed commercial an'd political 
interests. In short, it was a compromise — a compromise, in 
some regards, unworthy of men who wished to be free, and en- 
tirely inconsistent with their declaration : " We hold these truths 
to be self-evident — that all men are created equal ; that they are 
endowe^ by their Creator with certain unalienable rights ; that 
among these are life, liberty, and the pursuit of happiness."^ 
The chief concession was made to the small States by giving 
them equal representation in the Senate;"^ the second was that 
giving to the slave-holding States representation for three-fifths 
of their slaves,'^ and the third was that extending the time for the 
importation of slaves until 1808.^ And all this was conceded 
for the sake of what seemed to them to be more indispensable — 
viz., union. There were other interests, it is true, such as grew 
out of their colonial traditions, made up, as they were, of so 
many different materials from the Old World, with such a mix- 
ture of social, political and religious opinions and beliefs, that it 
is not to be wondered at, this diversity of interests. Bancroft says 

^ March 4th, 1789. 

-Declaration of Independence. Laws U. S., vol. i., Appendix. 

^Article I, Section 3, i U. S. Constitution. 

^Article 1, Section 2, 3 U. S. Constitution. 

^Article I, Section 9, I U. S. Constitution. 



38 THE CONSTITUTION. 

the Republic came because society contained the elements of no 
other organization. But it might be asked : Why could not these 
elements have been created as in other countries } The truth is, 
the spirit of the people was such, from Washington down, that a 
monarchical form of government would not long have been en- 
dured. No one will deny that the conditions for success were 
present, but it needed great foresight to make the proper com- 
binations. These were made, and the result was a compromise. 
Had it not been so elastic, it could not have been adopted; in fact, 
it seemed as if at one time all the members would not agree — some 
of them exclaiming: "We must adopt this constitution or draw 
our swords." The United States form of government might be 
placed between that of Switzerland and of England — /. e., be- 
tween king and council — agreeing with the English in placing the 
executive in the hands of a single person ; and with the Swiss, in 
making the executive power elective rather than hereditary, as 
well as making it responsible rather than irresponsible. While 
the framers of the Constitution were mostly men of means, yet 
there were among them men of thoroughly democratic ideas ; 
and although the Constitution is largely conservative, still there is 
ample room for a democrat to gather consolation from it, not- 
withstanding the fact that the excitable Frenchmen of letters 
thought it was too aristocratic. Be that as it may, our Constitu- 
tion means that government is instituted foi' the people, and by 
the people. But the people does not, with us, mean the rabble. 
The effort to so interpret it has been made many times, but no 
sooner has the hydra of social democracy shown its head with us 
than it has been put down with a strong hand. The people are 
the source of all authority; they are the sovereign, but they 
themselves are limited by a higher authority — not the State, but 
the law^ which is king in the land. 

Now, since it is impossible, or rather impracticable, for the 
whole people directly to administer the affairs of government, 
their power is delegated to a few. Our greatest expounder of 
constitutional law — Daniel Webster — says: "The State is an 
organized government, representing the will of the people so far 
as they see fit to invest that government with power. "^ Now, the 
basis of delegatory or representative power is suffrage, by which 
all individual powers are conferred upon an agent. This idea 

1 Webster's Works, vol. vi,, 222. 



THE CONSTITUTION. 39 

of suffrage in the United States is not yet fully understood in 
Europe. Under the Constitution it is limited as to iiine^ place and 
manner^ first, and also (and this is generally overlooked) made 
subject to whatever State laws exist in conditioning the right of 
voting for the " most numerous branch of the State legislature."^ 
From this it will be seen how easily the right of suffrage can be 
controlled when once it should seem necessary to do so. It must 
be granted that the tendency has been to throw down all barriers 
as to the right of suffrage, when we compare the old colonial 
property qualifications'^ with those of the present day, which are 
chiefly restricted to permanent residence, service in the militia, 
paying of a small tax called " poll tax," ability to read and write, 
etc. Hoist, in his judgment of the political capacity of the 
American people, while giving them considerable credit, yet 
charges them with holding most tenaciously to what he calls 
idols.^ I venture to say that no people have exerted themselves 
more energetically to get rid of political sophisms and idols 
than they.^ 



^Article I., section 4, i U. S. Constitution. 

^Article I., section 2, i U. S. Constitution. 

^Hildretli's Hist. U. S., vol. iii., 381. 

'^Holst, Verfassung, etc., vol. i., 65. 

^For example, the paying of our debt, and the abolition of slavery. 



THE CONSTITUTION: 

A RETROSPECT OF ITS DEVELOPMENT. 



We have already traced, in a degree, the development of the 
idea of representative government in America, up to the time of 
the adoption of the Constitution, which has now been our guide 
for nearly one hundred years, during which period it has been 
severely tested in its weakest points, and it has withstood the 
test. With a glance at the theories advanced in the science of 
government, prior to its ratification, we will proceed to consider 
more particularly what there is in it which is the result of Ameri- 
can experiences, and then to note its practical operation and the 
methods employed for making it practical. 

As to theories of government there was, at the time of the con- 
stitutional convention, no lack. In furtherance of some of them 
experiments had been made (European) in Carolina, by Locke 
and Lord Shaftsbury;^ besides, they had Hume and Milton 
before them. But our fathers do not seem to have had a very 
good opinion of these theories, although they did respect the 
authors of them. Hume wished the controlling power given to 
one hundred senators ; Milton, to a permanent council of sena- 
tors, which should have both legislative and executive authority : 
while Locke believed that the forms of the past — like Kant's 
intuitive forms of thought — should serve as the moulds for all 
possible ideas of government. He forgot that, while it is per- 
haps possible with Kant to trace all forms of thought to two- 
time-and-space, it is impossible to confine the conditions of 
government to either, especially in a self-government where the 
people, as a body, must act as individuals do — adapt themselves 
to their present, and, as far as possible, to future circumstances. 
Locke endeavored to combine a hereditary system of wealth with 
political power. He was liberal to the Jews and the heathen ; 



^This plan was never actually put in opex-ation, because the settlers, who 
had framed a set of laws for themselves, made it impossible for the governor to 
introduce it. — Bancroft's Hist. U. S., vol. i., 462, 



THE CONSTITUTION, 



41 



but he dreaded a democracy/ In Carolina there were to be 
eight proprietaries for ever — these being hereditary — and in case 
of a failure of heirs, the other proprietaries elected a successor. 
The land was divided, according to a rule, into counties, in each 
of which there was to be two orders of nobility — an earl and two 
barons. To these two-fifths of all the land belonged, while the 
balance was to be distributed among the people. The legis- 
lative authority and final judicial authority was vested in the 
proprietaries." No wonder that John Adams said : " That a 
philosopher may be a perfect master of Descartes'^ and Leibnitz, 
may pursue his own inquiries into metaphysics to any length he 
pleases, may enter into the innermost recesses of the human 
mind, and make the noblest discoveries for the benefit of his 
species ; nay, he may defend the principles of liberty and the 
rights of mankind with great abilities and success, and, after 
all, when called upon to produce a plan of legislation, he may 
astonish the world with a signal absurdity ! " In truth, the 
colonies, taken all in all, had a pdlitical experience which com- 
prehended nearly all the methods of legislation in modern times, 
and they were enabled to compress these experiences into a 
system. Indications of this system of fundamental law are seen 
not only in the sketch of our history already given, but in other 
special instances which are now added to show how much stress 
was laid upon a proper balancing of all governmental authority, 
by inventing a series of checks. Some fifteen years before the 
ratification of the Constitution, a convention was held in Middle- 
sex, Mass., which was composed of delegates from every district 
and town in the State, at which, among other resolutions passed, 
there was one of the following import : " That in all free States 
there must be an equilibrium in the legislative body, without 
which constitutional check they cannot be said to be a free 
people.'"* Only a few weeks afterwards,^ the first Continental 
Congress composed an address to be sent to the people of 
Canada, of whom many were French, which contained a quota- 
tion from the great French philosophical and political writer, 
Montesquieu : " In a free State, every man who is supposed a 

^Bancroft's Hist. U. S., vol. i., 458. 

-Bancroft's Hist. U. S., vol. i., 459. 

•^He had in mind the fact of Locke being Descartes' great antagonist. 

"'August 30th and 31st, 1774. 

•''October 'J6lh, i 774. 



42 THE CONSTITUTION. 

free agent ought to be concerned in his own government ; there- 
fore the legislative should reside in the whole body of the people 
or their representatives. The political liberty of the subject is. 
a tranquility of mind arising from the opinion each person has of 
his safety. In order to have this liberty, it is required the gov- 
ernment be so constituted as that one man need not be afraid 
of another. When the power of making laws and the power of 
executing them are united in the same person, or in the same 
body of magistrates, there can be no liberty, because apprehen- 
sions may arise lest the same monarch or senate should enact 
tyrannical laws, to execute them in a tyrannical manner. The 
power of judging should be exercised by persons taken from the 

body of the people There is no liberty if the power of 

judging be not separated from the legislative a7id executive powers''^ 
That Congress, by inserting this in the Canadian address, indi- 
cated its opinion of government for the people and by the people. 
This idea was in the mind of our fathers for fifteen years, at least, 
before we see it developed into the three co-ordinate powers that 
now work so harmoniously in America. 

POWERS OF THESE THREE BRANCHES AND THEIR 

RELATIONS TO EACH OTHER AS WELL AS 

TO THE PEOPLE, PRACTICALLY. 

THE EXECUTIVE. 

The President is the responsible head of the Government — 
the medium of communication with foreign powers — the maker, 
"by and with the advice and consent of the Senate,"^ of all 
treaties ; the seat of the pardoning power,'^ and the appointing 
power, with the advice and consent of the Senate;'* the com- 
mander of the army and navy,"* and the depository of a limited 
veto power.® The law making, or 

LEGISLATIVE BRANCH, 

is composed of two Houses — a Senate and House of Representa- 
tives. The former is not only chosen in a different manner, but 

^American Archives, vol. i., 932. 

^Article II., section 2, 2 U. S. Constitution. 

^Article II., section 2, I 

^Article II,, section 2, 2 

^Article II., section 2, i 

^Article II., section 7, 2-3 



THE CONSTITUTION. 43 

also for a much longer term than the latter. The latter have the 
sole power of originating tax and appropriation bills, and of 
impeachment. The former have the sole power to try impeach- 
ments; and, in concert with the Executive, tp advise and consent 
to nominations for office. Besides, the Legislative body has, in 
certain cases, the power of choosing the President and Vice- 
President. There are certain other powers of which we will 
shortly speak, under the head of constitutional checks. 

The Judiciary is not an elective power, like the two other 
co-ordinate branches, but is appointed by the Executive in the 
same manner as other appointments.^ 

HISTORIC PRECEDENTS TO THE CONSTITUTION. 

Of these I shall name only a few here and compare them with 
the Constitution. The principle of taxing and of appropriating 
moneys only with the consent of the people was first insisted upon 
as long ago as 1624,^ The democratic principle of equal rights 
to all came over the sea with the Puritans. The idea of two 
houses in the legislative body we have already shown to have 
existed as early as 1644 in Massachusetts,^ while that of the gradual 
change of the representatives is seen in New York as early as 1665 
where the overseers were to hold office' for four years, one-half 
retiring every two years. The first check upon the appointments 
of the governor in colonial times was given in the Charter of 1692 
to Massachusetts when the advice and consent of the couticil was 
necessary to all the official acts and appointments. The prohibit- 
ing clause in regard to religious tolerance was the legitimate result 
of an antipathy to the Church of England in particular and fear of 
the Catholic Church in general. The protest of the people just 
prior to the declaration of independence, as for instance, that of a 
meeting held at Stamford, Connecticut, Oct. 7th, 1774, to give 
expression to their abhorrence of the notorious Quebec Bill 
whereby the Roman Catholic religion was to be established in 
Canada."* A popular writer of that time named " Salus Populi " 

^Article II., section 2, 2 U. S. Constitution. 

-Neumann. " Die Vereinigte Staaten," vol. i., 18; also, Bancroft's Hist. 
U. S., vol. i., 119. 

^Hildreth's Hist. U. S., vol. ii., T42. 

^Compare "Quebec Bill," American Archives, vol. i., 217, 218; also, 
Suffolk Resolutions, American Archives, vol. i., 776-g. 



44 



THE CONSTITUTION, 



used his pen in opposition to religion in the State. ^ For this pro- 
hibition we may well thank God, and it is a remarkable fact that 
the Methodist Church which had broken away from the State 
Church of England just previous to the revolution got its foothold 
in America just at the time when most of the English pastors had 
fled on account of their tory ideas, a foothold which it has never 
relinquished, it having grown up with the country until now it is 
the largest denomination in America. 

But the provisions of the Constitution may be also seen in the 
compact of the New England colonies," in that of Albany,' in the 
Articles of Confederation^ and in the Constitution of South Caro- 
lina already referred to. 

The dividing the Senate into three parts, each expiring every 
two years, with the House of Representatives, was first introduced 
by Franklin in his proposed Articles of Convention ; he proposed, 
however, instead of their being chosen by the legislatures of the 
States, that they should be chosen by the representatives in Con- 
gress from among themselves.^ The idea of a Senate as a supe- 
rior council dates back to early colonial times when the governors 
had their Privy Councils. And later when it became necessary 
for the colonies to change their form of State government they 
generally adopted the plan of an Upper and Lower House. At. 
the organization of the State of New Hampshire in 1776^ a reso- 
lution was passed preparatory to the formation of a council or 
senate which read as follows : " Voted : That precepts be sent out 
to the several towns and places in this colony whose representa- 
tives are advanced to the council to choose new members."^ It 
will be observed from this resolution that the councillors were 
chosen from the representatives, and that it was considered as an 
advancement in position and dignity. In the matter of passing 
laws, originating bills of taxation and of adjournment, the Consti- 
tution of New Hampshire served, in part, as a model to the Con- 
stitution. But the instrument adopted by South Carolina March 

^Of the date March, 1776, American Archives, vol. v., 96. 

"Compare pages ii 'and 12 of this Essay. 

^Compare pages 13 and 14 of this Essay. 

^Article IX.; also, pages 21 and 22 of this Essay. 

^Compare Bancroft's Hist. U. S., vol. vii., 279. When the new govern- 
ment of Virginia was formed in 1776, its senate was chosen for four years — one- 
fourth expiring each year. 

•'Compare pages 29 and 30 of this Essay. 

■^American Archives, vol. v., 4. 



THE CONSTITUTION. 45 

26th, 1776, and which she called a " Constitution," contained in 
it many of the more stringent powers afterwards conferred upon 
the United States Executive. It gave the title President and 
Commander-in-Chief^ to its governor which was borrowed by the 
framers of the Constitution, as well as. that of Vice-President, and 
whose powers are similar now. The Privy Council of South Caro- 
lina had only advisory powers^ as the American "Cabinet" has 
to-day, and then, as now, the President was not bound to accept 
advice. This " Cabinet " of ministers might be compared to the 
British ministry, except that the latter is responsible while the 
former is not; and the comparison may be carried still further, in 
that they are both unknown to their respective constitutions. It 
is true the American Constitution recognizes certain heads of 
departments w^ho are appointed by the President with the advice 
and consent of the Senate, and whom ''he may require "^ to give 
written opinions in regard to matters in their respective depart- 
ments. The South Carolina Constitution provided also for a 
legislative council"* chosen from the popular branch, and these 
two in concert chose the President, Vice-President, and Privy 
Council, of which the Vice-President was chairman. The com- 
parison fails here in that the national Vice-President of to-day 
does not preside over the Cabinet, which is similar to the Privy 
Council of South Carolina, but over the Senate, which is similar 
to her legislative council and has similar powers, except that while 
the latter could "propose and concur" with amendments on all 
bills whatsoever, the former can not propose or originate bills 
making appropriations or levying taxes. ^ The Vice-President of 
the United States while exercising the duties of a presiding officer 
is regarded simply as a reserve or possible President, as was the 
case with the Vice-President of South Carolina. In the latter 
State the President could veto all bills absolutely, while now he is 
allowed a limited power in this regard. Neither can he now pro- 
rogue, adjourn or dissolve the Legislature. "^ He can, however, 
call them together in extra session before the appointed time;' 



^Ai'ticle III., South Carolina Constitution. 

^Article V., " " American Archives, vol. v., 611. 

^Article II., section 2, I U. S. Constitution. 

'^ Article VII. S. C. Constitution ; also pages 30 and 31 of this Essay. 

•^Article I., section 7, i. 

"Article I., section 7, 2. 

■^Article II., section 3, i. 



46 



THE CONSTITUTION. 



and in the sole event of the two Houses being unable to agree " to 
a time of adjournment," he can adjourn them to such a time as he 
may think proper.^ 

THE VETO POWER. 

This power, borrowed from England, first appears among the 
political doctrines of American statesmen in 1754 at the Albany 
Congress, where it was proposed to give to the President of the 
proposed colonial government of that time a negative upon legis- 
lative acts, subject to the approval of the Crown of England. It 
afterwards appears in the Constitutions of some of the States. In 
Massachusetts it was adopted although in a modified form, three- 
fourths of the legislature being required to pass a law rejected by 
the governor. In South Carolina, as we have already seen, the 
President had an absolute veto on all laws. In the convention 
which framed the U. S. Constitution, the delegate from New York, 
Hamilton, wished the President of the United States to have the 
same absolute power; but all other delegates, except Wilson, of 
Pennsylvania, opposed it. Once it was agreed that the Massachu- 
setts plan should be adopted, but it was afterwards reconsidered, 
and finally the present form, viz., two-thirds, was adopted." In 
many of the States there was a dread of this power, especially m 
Virginia, where the King of England had resorted to it to force- 
slaves upon them after they had resolved to prohibit their importa- 
tion.^ Even South Carolina in her new Constitution of 1780 
withdrew the negative power entirely. 

The result, however, which was finally reached in the conven- 
tion of 1787, was a compromise between the men of strong 
monarchical proclivities and those of democratic tendencies. 
Hamilton, who had been strongly democratic* in his views during 
his early years, now went over to the opposite extreme. He, 
together with Rutledge, of South" Carolina, (Pinckney also,) saw 
how necessary it was at times to have a power that could check a 
sudden and dangerous tendency of the legislative branch. They 
had the examples of many of the popular enactments of the State 
before them confirming their opinions. 

•Article II., section 3, i, 

'^Article I., section 7, 2. 

^Bancroft's Hist. U. S., vol. vii., 279. 

^Neumann, Die Vereinigte Staaten, vol. i., 292. 

Neumann is mistaken when he says the President of South Corolina had 
no veto under the Constitution of 1776. He probably confounds that of 17S0 
with it. 



THE CONSTITUTION. 47 

THE PRACTICAL OPERATION OF THE CONSTITU- 
TION AND THE METHODS EMPLOYED FOR DELE- 
GATING ITS POWERS BY THE PEOPLE. 

Under the authority conferred by this instrument the new 
government began its practical work. Washington was scarcely 
seated in the presidential chair before an insurrection broke out 
in Pennsylvania, and an Indian war threatened along the Ohio, 
yet both of these were put down with the new system. The 
Indian expedition at first failed, but the second, under a general 
of Washington's own selection, succeeded. By the Act oi the 2cl 
of March, 1791,^ it was declared that all the laws of the United 
States " ought to have and shall have the same force and effect 
within the State of Vermont as elsewhere within the United 
States."'^ It appears to have been necessary for Congress to pass 
an Act Aug. 7th, 1789, to the effect that the United States officers 
in the territories should communicate with the President and not 
with Congress ;^ and at the same time Congress found it expedient 
to resign its power of appointing inferior officers as well as the 
power of granting and revoking commissions. The power of 
granting treaties seems to have been favorably tested during 
Washington's second administration. The House of Representa- 
tives attempted to annul a treaty by refusing the necessary appro- 
priations, x Washington, in a message to the House, denied that 
they had such a right. Kent, in commenting upon this, says, " if 
a treaty be the law of the land it is as much obligatory upon Con- 
gress as upon any other branch of the government or upon the 
people at large." In this matter the House thought to imitate the 
action of the English House of Commons by refusing supplies ; 
but the cases are not analogous, since the action of the latter sup- 
poses grievances to be redressed, which the American House of 
Representatives cannot be supposed to have. Besides the House 
of Representatives has the power to repeal laws and treaties, of 
course with the consent of the Senate and President, and the 
Constitution did not mean that they should do it otherwise. One 
of the severest struggles between the House of Representatives 

^Laws of ihe U. S., vol. i., 360. Philadelphia, 1795. 

^By this it will be seen how, at that early period, the strong hand of a 
general government had at times to be invoked in order to carry out the laws. 
^Laws of the U. S., vol. i., 76. 



48 THE CONSTITariON. 

and the President recurred soon after the present executive 
(Hayes) took his seat. The House, a thoroughly democratic one, 
wished to make certain laws which the Republican President 
would not sign. In order to compel him to endorse their action 
they refused appropriations for some of the departments of govern- 
ment thinking that before he would permit matters going to such 
an extreme he would sign their bill. He firmly refused and char- 
acterized their course as a revolutionary one, and in this he was 
sustained by the country, which leads me to consider the various 

CONSTITUTIONAL CHECKS. 

Our fundamental law is broad yet conservative, so framed as 
to give the fullest freedom consistent with substantial government. 
The necessity for such a ground work of law we have already 
shown to have existed during, and subsequent to, the revolution ; 
yes, even before the assembling of the first Continental Congress, 
as we have shown by the Middlesex resolutions, there was felt the 
need of checks. In colonial times all that seemed necessary was 
to put the check on the executive ; but before the Convention of 
1787 met the theory was partly reversed, and it was found expe- 
dient, yes necessary, to check the legislative branch. That this 
was the result of giving the right of suffrage to a vast number of 
people who prior to the revolution had not received it there is no 
doubt, and it is well that these democratic tendencies were ob- 
served in time. There is perhaps no country where the checks, 
{if exe?'cised,) to the abuse of power are as ample and effective as 
with us, nor is there a country where they are more needed. 

In England the House of Commons is the virtual ruler, since 
no ministry can be retained for a length of time without its sup- 
port of the measures which they propose or adopt. The House 
of Commons can be dissolved, it is true, but if the new House 
does not agree with the ministers they resign, since the days for 
the repeated dissolution of Parliament have gone by. Our fathers, 
not without much discussion, agreed upon : 

First. — A " Congress "to be composed of two branches, elected 
by different electors, for different terms of service. The smaller 
and longest termed body chosen by the State Legislatures for six 
years ; the larger and shortest termed body chosen by the people 
in the various districts for two years. 



THE CONSTITUTION 



49 



Second. — An Executive, to see to the careful exercise of the 
laws enacted, and to act as a check upon Congress by means of 
his veto ; and 

Third. — A Judiciary, to decide as to the constitutionality of 
all laws passed, as well as to try all cases between the States and 
the cases of the United States. 

The war power, as already remarked, was tested lightly during 
the early years of the Constitution. In i8t 2-14 with Great Britain, 
a few years later with the African States, in the various Indian 
wars, in 1848 with Mexico and during the Great Rebellion. 
During the latter war the writer saw the practical working of abol- 
ishing the writ of habeas corpus. Mr. Lincoln, finding that the 
sympathies of a large class of people in the State of New York 
were with those in rebellion, seized and imprisoned many citizens, 
among others the editors of two powerful newspapers, and whose 
offices were closed. Yet this extreme action scarcely caused a 
ripple among the people at large. It had on the contrary a 
salutary effect, since men who had never ceased to damn the gov- 
ernment suddenly became more choice and circumspect in their 
language. The framers of the Constitution had just witnessed the 
threatened success of a rebellion in Massachusetts' led by one 
Shay. Moreover, the old Continental Congress had so varied an 
experience in being driven from place to place, sometimes by the 
enemy arid sometimes by its own troops, as well as finding itself 
at times in. conflict with the State authorities where its sessions 
were held, that it very soundly concluded that there should be a 
national capitol subject to the sole power of Congress. In the 
exercise of the veto power which seems so objectionable to many, 
especially when there is a check in the Senate, it may be said that 
probably three-fourths, if not nine-tenths, of the vetoes given by 
our Presidents have been beneficial. It is especially worthy of 
remark that it has nearly always been used on the side of national 
integrity. During the last few years demagogues have succeeded 
in propagating some very erroneous dogmas on finance among the 
people. Now although the native American people are on the 
whole keen in judging as to the merits or demerits of all practical 
political questions, yet it can not be supposed that they would be 
versed in the great questions of political economy. The land is 



■^Hildretli's Hist. U. S., vol. iii., 473 and seq. 
4 



50 



THE CONSTITUTION 



new and the people are absorbed in the business of developing 
its resources, too much so by some who don't find time to exercise 
their right more than once in four years. Hence we see that 
these checks are essential to close up those avenues of approach 
to our liberties over which demagogues seek to pass. Religion 
seldom comes into politics, and when it does it is very harshly 
used, for the good reason that it has no right there under our 
constitution. The writer took part in the election for the new 
Constitution of New Jersey in 1876, some of the provisions of 
which were opposed by the entire Catholic church. So soon as it 
was apparent that this church as a religious body was acting 
against its adoption all other churches irrespective of their party 
ties voted for it and it was overwhelmingly adopted.^ The very 
liberal policy pursued by the American government towards for- 
eigners, while of vast importance in developing the resources of 
the country, has dangers which in any other country would seem 
extra hazardous ; the fact that they can be naturalized within the 
short space of seven years^ — -hardly a sufficient length of time for 
them to have gained very clear ideas on our political affairs — does 
seem to sustain this view, especially when their numbers are so 
great. But this is not the only evil. The evil lies in the fact that 
so many ii-responsible persons, native as well as foreign, can by 
their votes so easily infliLence the House of Representatives. 
Hence the great need of a strong negative power. It is not easily 
conceived how a president would wilfully veto bills which were of 
real interest to the country, for in that case he would be liable to 
impeachment. 

It sometimes occurs that the people dissatisfied with one con- 
gress send another in its place who pass measures condemned by 
the better sense of the nation, but since the days of slavery they 
have rarely run the gauntlet of the Senate and President without 
being killed by one or the other. Nor is it easy to change the 
entire government. Let us suppose for example that the Senate 
is republican this year and the House the same; that in the elec- 
tions to be held next fall the House becomes democratic. Now 



^The provisions objected to by the Catholics were a State public school 
system, and the absolute prohibition of State funds being used for church 
purposes, as well as taxation of church property not strictly used for religious 
purposes. 

^I believe it is less than this now. 



THE CONSTITUTION. 



51 



in order that the Senate should become also democratic we have 
to suppose : 

First. — That the same issues which controled the electors in 
voting for the national assembly also tontroled them in voting for 
the State assembly which, in part, chooses the U. S. Senator. 

Second. — We must suppose that the State Senate, which is to 
take part in the choice of a senator and which has already been 
elected a year, previous, was elected on the. same issues or by the 
same party, which amounts to the same thing ; and 

Third. — We must assume that the political complexion of the 
United States Senate is such that, at the time these changes are 
taking place in the various States, it has less than one-third major- 
ity, for if it had a greater majority its political complexion could 
not possibly be changed in less than four years since only one- 
third can be changed each two years, unless there were deaths 
among the number ; and we suppose still further that all the State 
governors belong to the same party. Of course this supposed 
case is rare in fact. Since 1861 the U. S. Senate has changed but 
once and that in 1879, and although the party which does not 
control it now has been gaining in all the States since 1877 yet 
the Senate cannot in all probability be changed before 1883, 
From this it will be seen that it takes time for the popular mind 
to carry ''out its will, thus giving ample time for crude ideas to 
cool and more burning and practicable ones to take their place. 

ROTATION IN OFFICE. 

While this principle in its bearing upon the higher executive 
offices may be salutary, it cannot be so urged in its bearing upon 
the various offices of the government, numbering thousands, scat- 
tered throughout the land. Yet it must be admitted, however 
reluctantly, that here exists a crying and most dangerous evil. To 
change the great parties and the leading statesmen is necessary at 
all times to preserve a government by the people, but to change 
the one hundred thousand petty officials in the country is quite 
another matter. As apparent as this is to all thinking men still it 
is one of the greatest tasks which the United States has before it 
to institute civil reform. This idea of rotation in office is as old 
as the country. As long ago as 1634 in Massachusetts the people 



52 



THE CONSTITUTION. 



fully believed in this idea (although it was generally confined to 
the idea of successive terms), for they changed their governor, a 
very good man by the way, notwithstanding the sermon preached 
against it by their minister, ^vho declared that a magistrate should 
not be turned out of office without a trial for bad conduct.^ And 
when the towns met in Connecticut to form a government in 1639 
they made the candidate for governor ineligible for two years 
/// succession!^ Again in Massachusetts, in the same year, there 
was much jealousy because Winthrop was elected for three 
successive years, since they might " make way for a governor 
for life.'' 

The tendency in America now is to increase the terms of 
executive officers. In many of the States where only a few years* 
ago the term for the governor was one year it is now three or four 
years. This tendency is in a sense a check upon the other tend- 
ency to universal suffrage. 

UNWRITTEN METHODS EMPLOYED IN DELEGATING 
INDIVIDUAL POWER TO REPRESENTATIVES. 

There are a variety of methods to which the people have 
resorted in order to select candidates for office. The political 
divisions of a State consist of towns, counties and chartered cities. 
The legislative divisions are congressional, senatorial and assembly 
districts. In the towns the people hold their town meetings openly 
and nominate, either by ballot or viva voce, their chief official — 
supervisor,^ as well as their remaining officers. These supervisors 
of all the towns make up the board of supervisors for the county 
which has the direction of county affairs. In order to nominate 
the high sheriff, judge and surrogate, as well as the treasurer of 
the county, a county convention is called by one of the acting 
officers where there are delegates from all the towns. In analo- 
gous manner delegates are sent to the assembly, senatorial and 
congressional conventions where the members of congress and of 
the state legislature are nominated as candidates. The chief State 
officials are the governor, secretary, attorney and treasurer (there 
are also superintendents of canals and prisons^ etc.); these are 

iHilclreth's Hist. U. S., vol. i., 198, 199. 
-^Hildreth's Hist. U. S., vol. i., 261. 

=5This is the case in New York. In Connecticut there are three selectmen, 
but the office is the same, no matter what be the name. 



THE CONSTITUTION. 53 

chosen at the State Convention which is made up of delegates 
from all the counties or districts. 

We see from the above that the people meet at their various 
places and delegate their power to others, who in their turn dele- 
gate it to the higher delegates. So that the farther this power 
gets from the people the less likely they are to have their particu- 
lar choice. This might to some seem a great objection, but to the 
writer it does not, since it leaves less room for demagogues to 
affect the mind of the people. But where the people have the real 
power is at the polls in voting. If their conventions do not select 
the men they want as candidates the people can reject them there, 
and when this has been done a few times the conventions are apt 
to be more careful in their choice. When this occurs it often has 
the effect of breaking up the party which attempted it. If one 
regular convention should select some very objectionable man, 
in all probability another convention would be called and another 
candidate selected. While it is true that party ties and discipline 
are very rigorous, yet these bolts are by no means uncommon. 
Sometimes the delegates are instructed to vote for certain men. 
Let me give a few examples. Binghamton. Broome Co., N. Y., 
Aug. 24 : " The republican convention of yesterday chose Hon. 
S. C. Mersereau, G. J. Plat, etc., as delegates to the State conven- 
tion ; they were z/^zinstructed, but are in favor of John C. Robin- 
son for governor. The delegates to the senatorial convention are 
O. W. Chapman and others ; they were instructed to support the 
nomination of Hon. E. G. Halbert for State senator." . Erie Co., 
Buffalo, Aug. 24 : " There was a split in the first assembly district 
convention yesterday, and two sets of delegates were elected; one 
set will vote for S. S. Rogers for governor, and what the other will 
do is unknown." 

From these examples it will be seen that wherever any parti- 
cular district has a favorite they are generally instructed to vote 
for him. In effect the people have the control through their choice 
of delegates and full power of election. 

NATIONAL CONVENTION. 

This is made up of delegates from the various States, chosen 
at the State conventions. Here all the various interests, state and 
national, are foculized. The number of delegates is twice that of 



54 THE CONSTITUTION. 

the members of the United States Congress, viz., at this time 738,^ 
each State having twice the number of delegates that it has in the 
national legislature. These conventions make their own rules of 
choice, for instance, the republican party chooses by a bare major- 
ity while the democratic by a two-thirds vote. The great trouble 
with us in getting the men we want is that they themselves, rather 
than see their most worthy competitors succeed, will almost always 
throw their influence for some man inferior to themselves. Mr. 
Lincoln was thus selected, although he proved worthy of the office 
of President. But the really great men of that time were Seward 
and Chase. Now the three greatest candidates are Grant, Sher- 
man and Blaine, yet it looks as if they would kill each other off. 
At the last National Convention Mr. Blaine after the first few bal- 
lots lacked only a few votes of getting the nomination ; as soon as 
this was observed all the other candidates combined against him. 
These facts are cited as practical instances of the methods for 
selecting candidates. 

ELECTION. 

Foreigners generally wonder how we can find the time for so 
much political work. Now in the country these election days are 
somewhat like the market days in Europe where the people come 
together to trade, except that in America political work is added. 
The electors meet, talk business and politics in the same breath 
and with but little excitement. They are so trained, so accus- 
tomed to it, that it seems as necessary and as natural for election 
days to come as for Sundays. The writer has personally attended 
every election since 1856 in three different States and three large 
cities, and, excepting New York city during the war of rebellion, 
all was comparatively peaceful and orderly. It is true that in the 
case of a disputed election the strain on the minds of the people 
is great, but so far we have learned on the whole to observe the 
law and to make foreigners observe it, a thing to which they are 
little inclined, since their ideas of liberty are too extravagant to 
suit the notions of those Americans whose fathers framed the 
government and gmnted to the oppressed of all the earth such 
favors. Yet it seems to me if there be one thing for which we 
ought to have credit it is, that the millions of people of all shades 
of character and opinion from the old world who have entered 

^The Territories have two each, making a total of 756. 



THE CONSTITUTION. 55 

our ports have been so readily absorbed in the political body, 
assimilated as it were like food in the stomach — even a little poi- 
son now and then — all, however, tending to the growth and 
strength of the form. 

What if evil disposed men seek to destroy the government } 
We rest assured in the belief that the hnu will prevail in the end 
through the powers delegated by the people to their represen- 
tatives. 

ELECTION OF PRESIDENT AND VICE-PRESIDENT. 

The Constitution provides that these officers shall be elected 
by electors who are to be appointed by the State legislatures in 
such manner as they choose.^ In some of the States this power has 
been conferred upon the people, /. <?., that of voting for the 
electors, and thus indirectly voting for president and vice-presi- 
dent. The truth is our fathers feared to trust this power to the 
people. However, in practice these electors always vote for the 
candidate whom the people electing them desired. These electors 
are not, in practice, independent, although there can be no doubt 
of their having been so intended by the Constitution. They are 
not officials since officials are prohibited. A bare majority of one 
in any State gives all of the electors of that State to the success- 
ful party in it. By this plan it has frequently occurred in our his- 
tory that the president elected had a minority of the popular vote ; 
and this is quite right and just what the framers of the constitu- 
tion intended according to my notion. It matters not whether 
the State of New York, which casts about 1,000,000 votes, has one 
or a hundred thousand majority she has 35 votes, no more no less 
in either case. These 35 votes represent her 2,?> representatives 
and 2 senators in Congress. The total number of all the :^2> 
States is now 369 electoral votes. At the last presidential election 
Hayes, the present incumbent, had 185 and Tilden 184, the latter 
having nearly 250,000 more votes than the former. When there 
is no majority of all the electors for any one candidate over all 
the other candidates then the election is thrown into the House 
of Representatives, and they vote by States, t. e.^ each delegation 
of all the States voting separately as a unit. In case there should 
be a tie or no choice made before the term of the acting President 

^Article II., section i, 1-4 ; also Amendments, Article XII, i of the 
U. S. Constitution. 



^6 THECONSTITUTION. 

expires then the Vice-President takes his place, and after him the 
President of the Senate /r^ tempore. This was not the case before 
the assassination of Mr. Lincoln. The attempt having then been 
made to bring about anarchy by cutting off all the heads of the 
government, the succession to the presidency descends through 
the Speaker of the House of Representatives to the Chief Justice 
of the Supreme Court. In case of its devolving upon the Speaker, 
it is a question — in case it occurred at a time when one Congress 
had expired and the other had not begun its sittings — whether 
the Speaker of the last or of the new House should serve. 

In case there is no choice of Vice-President by the electors, 
then the Senate chooses him. There can -be no denial of the fact 
that our greatest danger lies just here, in this matter of electing 
the chief executive officers of the land. That we have thus far 
happily escaped a terrible collision is due to the calmness and 
determination of the people to submit even to an injustice for a 
time, rather than plunge the State into the horrors of civil war. 



VITA. 



I was born at Pound Ridge, in the State of Connecticut, February 15th, 
1848, but only a few months afterwards my father, who is a minister in the 
Methodist Episcopal Church, moved into the State of New York. In this 
State the most of my life has been spent ; in the early part of it I attended 
the public schools where we lived, often going some miles to reach the 
school-house. I also received instruction at home fronj my parents. At 
the age of ten I was sent, with a younger brother, to Staten Island,* to 
attend the boarding-school of my uncle, Henry Boehm, who was school 
commissioner for that island (Richmond County), Here I remained two 
years, and returning home, pursued my studies in the ordinary branches 
until 1863, when I was sent to New York City to attend the Grammar 
School No. 45.f During this time I lived with James W. Anten, Esq., 
editor of the Shipping and Commercial Newspaper. Having graduated there 
in 1864, I was examined and passed for admission into the " Free Academy," 
now called " College of the City of New York." But I did not enter — 
choosing rather to enter into business in Wall Street, where I i-emained 
nearly five years in the " East and West Indies Trade." At twenty-one 
years of age I entered business for myself, which I continued for two years, 
when I entered the Drew Theological Seminary, at Madison, New Jersey. 
Here I Remained six years studying the Classics and Mathematics, as well 
as History, and Philosophy for three years, and then Theology for three 
yeai-s. Soon after graduating here (May, 1877), I sailed for Germany, via 
England. After stopping in Hanover a few months, and visiting the southern 
part of Germany, I entered Leipzig University, October, 1877. During the 
summer vacation of 1878 I visited the Exposition at Paris and the Rhine. 
In the following spring (1879), I spent the vacation in Italy. With these 
exceptions, and short trips to Berlin and Dresden, my time has been spent 
in Leipzig hearing Drs. Wundt and Heinze, especially in Philosophy ; Dr. 
Springer in Art and Culture History ; Dr. Voigt in History, and Dr. Bieder- 
man in History and Literature. 

* This island lies at the entrance to New York Harbor. 

t These are high Schools where, besides the ordinary branches, Drawing, Chemistry, 
French and Algebra are taught. 



WORKS OF REFERENCE. 



American Archives (Fourth Series). 1837. 

Kent's Commentaries. 

Bancroft's History United States. Vol. i.-vii. 

Bancroft's History American Revolution. Vols, i.-iii. 

Hildreth's History United States. Vols, i.-iii. 

Webster's Works. 

Von Holst, Verfassung u. Demokratie der Vereinigte 
Staaten von Amerika. 1873. 

Von Ruttimann, Das Nordamerikanische Bundes-Staats- 
REc'ht. Zurich, 1867. 

Bluntschli, Liehre vom Modernen Staat. 

Neumann, Die Vereinigten Staaten. etc. 

These are the most important of the works which I have used. 



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